Unassociated Document


     

    
      SECOND
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

      OF

      CONCORD
DEBT HOLDINGS LLC

      


      


      SECOND
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, made as of the 2nd day
of August, 2008, by and among LEX-WIN CONCORD LLC, a Delaware limited liability
company (“Lex-Win”), and INLAND AMERICAN (CONCORD) SUB, LLC, a Delaware limited
liability company (“Inland”), and such other person or persons as may become
parties to this Agreement by executing a counterpart hereof.

      


      RECITALS:

      


      WHEREAS, WRT Realty L.P. (“WRT”), The
Lexington Master Limited Partnership (“MLP”) and WRP Management LLC (“WRP”) are
party to that certain Amended and Restated Limited Liability Company Agreement
of Concord Debt Holdings LLC, a Delaware limited liability company (the
“Company”), dated as of September 21, 2007 (the “Original
Agreement”);

      


      WHEREAS, WRT and MLP are simultaneously
herewith contributing their entire interest in the Company to Lex-Win and WRP is
resigning as the administrative manager of the Company;

      


      WHEREAS, Lex-Win and Inland desire to
be admitted as members of the Company and, in connection therewith, Lex-Win and
Inland desire to amend and restate the Original Agreement in its
entirety;

      


      NOW,
THEREFORE, In consideration of the covenants and conditions set forth in this
Agreement, the parties agree as follows.

      


       

      ARTICLE
I

      CERTAIN
DEFINITIONS

      


      1.1           General
Terms.  For purposes of this Agreement, the following terms
shall have the following respective meanings:

      


      Act:  The
Delaware Limited Liability Company Act, 6 Del. C. § 18-101 et seq.

      


      Acquisition Entity: A
Person that (i) has been in the business of originating and/or acquiring Loan
Assets for more than two years at the date hereof and such business is
established and past the development stage to the point that such Person
competes for Loan Assets with the Company and (ii) has more than a de minimis
amount of its assets as Loan Assets.

      


      Additional Investor
Notice:  As defined in Section 3.8(b) hereof.

      


      Additional
Member:  As defined in Section 3.8(a) hereof.

       

      
        
           

        

        
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      Advance Rate
Paydowns:  Payments of margin calls or other payments required
to satisfy amounts due on a Credit Facility other than interest payments and
voluntary principal payments.

      


      Advisory
Committee:  As defined in Section 7.2 hereof.

      


      Affiliate:  With
respect to a specified Person, (i) a Person who, directly or indirectly through
one or more intermediaries, controls, is controlled by or is under common
control with, the specified Person, (ii) any Person who is an officer, director,
member or trustee of, or serves in a similar capacity with respect to, the
specified Person or of which the specified Person is an officer, partner, member
or trustee, or with respect to which the specified Person serves in a similar
capacity, (iii) any Person who, directly or indirectly, is the beneficial owner
of 25% or more of any class of equity securities of, or otherwise has a
substantial beneficial interest in, the specified Person or of which the
specified Person has a substantial beneficial interest and (iv) the spouse,
issue, or parent of the specified Person.  For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract,
relation to individuals or otherwise, and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.  An Affiliate
does not include a Person who is a partner in a partnership or joint venture
with the Company or any other Member if such Person is not otherwise an
Affiliate of the Company or any Member.

      


      Bankruptcy:  With
respect to any Member, (i) the filing by that Member of a voluntary petition
seeking liquidation, reorganization, arrangement or readjustment, in any form,
of his debts under Title 11 of the United States Code or any other Federal or
state insolvency law, or a Member's filing an answer consenting to or
acquiescing in any such petition, (ii) the making by that Member of any
assignment for the benefit of his creditors, (iii) the expiration of 60 days
after the filing of an involuntary petition under Title 11 of the United States
Code, an application for the appointment of a receiver, trustee or custodian for
the assets of that Member, or an involuntary petition seeking assets of that
Member, or an involuntary petition seeking liquidation, reorganization,
arrangement or readjustment of its debts under any other Federal or state
insolvency law, provided that the
same shall not have been vacated, set aside or stayed within such 60-day period
(iv) the failure of a Member to generally pay its debts as they become due or
(v) the placement of a writ of attachment against any of the Member’s
assets.

      


      Business
Day:  Any day other than Saturday, Sunday or any other day on
which commercial banks or savings and loan associations are required or
authorized by law to close in Boston, Massachusetts or New York, New
York.

      


      Capital
Accounts:  The capital accounts of the Members maintained in
accordance with Section 3.9 hereof.

      


      Capital
Call:  As defined in Section 3.5 hereof.

      


      Capital Call
Amount:  As defined in Section 3.5 hereof.

      
         

        
          
             

          

          
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      Capital
Contributions:  The capital contributions of the Members made
to the Company pursuant to the terms of this Agreement excluding any Managing
Member Preferred Capital.

      


      Capital
Percentages:  An amount for each Member, expressed as a
percentage, equal to (i) such Member’s Unreturned Capital Contributions divided
by (ii) the Unreturned Capital Contributions of all Members.

      


      Capital
Proceeds:  All amounts received by the Company not included as
Cash Flow (excluding any contributions to capital) less any expenses incurred in
connection with receiving such amounts.

      


      Cash
Flow:  All amounts received by the Company from (i) Loan Assets
other than amounts attributable to payments of principal on the underlying Loan
Asset, (ii), in the case of an REO Property, all amounts received from such REO
Property commonly treated as operating revenue from real properties similar in
nature to the REO Property, (iii) income from Equity Securities and (iv) income
from Sidecar Investments, less, in all cases, (w) the operating expenses and
general and administrative expenses of the Company, including fees payable
pursuant to Article VI hereof, (x) interest expenses and scheduled
principal repayments pursuant to any Credit Facility, (y) any distributions
paid pursuant to Section 5.3 hereof and (z) such reserves as the Managing Member
may establish pursuant to Section 5.1 hereof.

      


      Code:  The
Internal Revenue Code of 1986, as amended from time to time, or any similar
Federal internal revenue law enacted in substitution for the Code.

      


      Commitment
Period.  The period from the date hereof until the earlier of
(i) the first anniversary of the date hereof if Capital Calls requiring the
Initial Preferred Member to make total Capital Contributions, inclusive of the
Initial Capital Contribution and the amount of any direct capital contributions
by the Initial Preferred Member in a Sidecar Investment Entity, of at least
$65,000,000 have not then been made or (ii) the eighteen month anniversary of
the date hereof; provided, however, that the
Commitment Period shall immediately expire on the date on which Lex-Win or its
Affiliates (other than an Acquisition Entity) invests in a Sidecar Investment
Entity independent of the Company or the Initial Preferred Member and such
Sidecar Investment Entity requires that Lex-Win or such Affiliate offer any Loan
Assets to such Sidecar Investment Entity prior to the earlier of clause (i) or
(ii) hereof.

      


      Common
Members:  The Managing Member together with all such other
Persons who are admitted as members of the Company in accordance with the terms
of this Agreement and classified as “common members.”

      


      Company:  Concord
Debt Holdings LLC

      


      Company
Interest.  The ownership interest of any Member in the Company,
including, without limitation, all rights to receive distributions and
allocations of Profit and Loss.

      
         

        
          
             

          

          
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      Company Minimum
Gain:  Means partnership minimum gain as determined in
accordance with Regulations Section 1.704-2(d).

      


      Company Redemption
Amount:  As defined in Section 10.1(c) hereof.

      


      Control, controlled or
controlling:  The possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract, or
otherwise.

      


      Credit
Facility:  Each loan agreement, credit facility, term loan,
match funded loan, repurchase agreement, warehouse line and other instruments
pursuant to which the Company or an Investment Entity obtains
financing.

      


      Default
Event:  The occurrence with respect to or by a Member of (a) a
Bankruptcy, (b) a failure to perform its obligations hereunder in any material
respect and the continuation of such failure beyond any applicable notice and/or
cure period, (c) any attempted Transfer of its Company Interest, or any part
thereof, that is not permitted hereunder, which shall include any attempted
transfer by the Managing Member of its management rights except as explicitly
permitted herein, (d) a dissolution of such Member, (e) entry of a final
judgment or decree of a court or governmental agency having proper jurisdiction,
declaring it or any of its then designees to the Advisory Committee guilty of a
felony, fraud or wrongdoing in connection with any business activity, (f) a
material misapplication by it or any Affiliate or subsidiary of funds of the
Company or of any Investment Entity or Sidecar Investment Entity, (g) fraud or
intentional misrepresentation by it with respect to the Company or its assets or
(h) a breach by such Member (or in the case of the Managing Member, a breach by
the Company) of any of its representations, warranties, covenants or other
obligations set forth in the Preferred Interest Purchase
Agreement.  For the avoidance of doubt and without limiting the
forgoing, a Default Event shall also be deemed to have occurred with respect to
the Managing Member if the Managing Member violates (or causes the Company to
violate) the provisions of Section 3.3 (Initial Capital Contributions), Section
3.5 (Additional Capital Contributions), Section 3.6 (Special Common Member
Capital Contributions), Section 7.4 (Special REIT Rules), Section 14.1 (Total
Debt Covenant), Section 14.2 (Short Term Debt Covenant) and Section 14.4
(Sidecar Investments).

      


      Depreciation:  With
respect to each fiscal year or other period, an amount equal to the
depreciation, amortization or other cost recovery deduction allowable with
respect to a Company asset for such year or other period, except that, if the
Gross Asset Value of a Company asset differs from its adjusted basis for Federal
income tax purposes at the beginning of such year or other period, Depreciation
shall be an amount that bears the same ratio to such beginning Gross Asset Value
as the Federal income tax depreciation, amortization or other cost recovery
deduction for such year or other period bears to such beginning adjusted tax
basis; provided, however, that if the
Federal income tax depreciation, amortization, or other cost recovery deduction
for such year is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the
Members.

      
         

        
          
             

          

          
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      Distribution Rate
Step-Up:  An increase in the Initial Preferred Member Priority
Return in the amount of (i) in the case of a Distribution Rate Step-Up made
pursuant to Section 3.6, 1% per month for the first two months in which such
Distribution Rate Step-Up is applicable and 2% per month thereafter, (ii) in the
case of a Distribution Rate Step-Up made pursuant to Section 5.2(ii), 1% per
month, (iii) in the case of a Distribution Rate Step-Up made pursuant to Section
14.1, 2% per month, and (iv) in the case of a Distribution Rate Step-Up made
pursuant to Section 14.2, 2% per month; provided, however, in no event
shall the aggregate Distribution Rate Step-Up exceed 4%; and provided, further,
that immediately upon the Initial Preferred Member exercising its right under
Section 7.6 hereof to remove the Managing Member, the Distribution Rate Step-Up
shall be reduced to, and shall thereafter remain, at zero; provided further,
that if Lex-Win or any of its Affiliates again becomes the Managing Member (or a
successor entity serving a similar management function in the Company), the
Distribution Rate Step-Up shall again apply pursuant to the provisions of the
Agreement referenced in clauses (i) through (iv) above.

      


      Equity
Securities:  Common shares of a publicly-traded mortgage
REIT.

      


      Excluded Short Term
Debt:  The sum of (i) 85% of Match Funded Debt which has a
maturity of less than one year and (ii) 85% of the face value of all of the
Company’s assets other than match funded assets that have a maturity date (after
giving effect to extensions) of less than one year and which serve as collateral
with respect to Credit Facilities with a maturity date of less than one
year.

      


      Fair Market Value: An
amount (in cash) that a bona fide, willing buyer under no compulsion to buy and
a bona fide, willing and unrelated seller under no compulsion to sell would pay
and accept, respectively, for the purchase and sale of the applicable asset,
taking into account any liens, restrictions and agreements then in effect and
binding upon the asset or any successor owner thereof and any options, rights of
first refusal or offer or other rights or options that either burden the asset
or run to the benefit of the owner of the asset; provided, however,
that in determining the Fair Market Value of any asset, none of the options,
rights of first refusal or offer or other rights of the Members hereunder shall
be taken into consideration.

      


      GAAP:  Accounting
principles generally accepted in the United States of America.

      


      Gross Asset
Value:  With respect to any Company asset, the asset's adjusted
basis for Federal income tax purposes, except that (1) the initial Gross Asset
Value of any Company assets contributed shall equal their respective gross Fair
Market Values (taking into account Section 7701(g) of the Code), (2) the Gross
Asset Value of any Company asset distributed to any Member shall be the gross
Fair Market Value of such asset on the date of distribution, as determined by
the Managing Member, and (3) the Gross Asset Value of all Company assets shall
be adjusted to equal their respective gross Fair Market Values (taking into
account Section 7701(g) of the Code) in the case of adjustments pursuant to
clauses (A), (B) or (C) of this definition, as determined by the Members, as of
the following times:  (A) immediately before the acquisition of an
additional Company Interest by any new or existing Member in exchange for more
than a de
minimis Capital Contribution; (B) immediately before the distribution by
the Company to a Member of more than a de minimis amount of
Company Assets as consideration for a Company Interest, in either case if the
Managing Member reasonably determines that such adjustment is necessary or
appropriate to reflect the relative economic interests of the Members (as
determined under this definition and Section 5.1); (C) immediately before
the liquidation of the Company within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g); and (D) in connection with an election under Sections
734(b) or 743(b) of the Code, but only as provided in Regulations Section
1.704-1(b)(2)(iv)(m).  Following any contribution of assets or any
adjustment to Gross Asset Value, the Gross Asset Value of the applicable assets
shall be computed taking into account Depreciation.

      
         

        
          
             

          

          
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      Initial Capital
Contribution:  For each Member, the amount set forth under the
heading “Initial Capital Contribution” on Schedule 1
hereto.

      


      Initial Preferred
Member:  Inland.

      


      Initial Preferred Member
Fixed Charge Coverage Ratio:  The ratio of Cash Flow to Initial
Preferred Member Fixed Charges.

      


      Initial Preferred Member
Fixed Charges:  The full amount of the Initial Preferred Member
Priority Return for any month (whether fully paid, paid partially or
unpaid).

      


      Initial Preferred Member
Priority Return:  An amount equal to a 10% per annum return,
compounded annually, on the Initial Preferred Member’s Unreturned Capital
Contributions, calculated on a daily basis in order to take account of changes
from time to time in the amount of such Unreturned Capital Contributions, plus,
when applicable, the Distribution Rate Step-Up.

      


      Initial Preferred Member
Redemption Amount:  As defined in Section 10.1(d)
hereof.

      


      Initial Redemption
Payment:  As defined in Section 10.1(c) hereof.

      


      Inland:  As
defined in the Preamble.

      


      Inland Real Estate Group of
Companies:  The independent real estate and financial companies
doing business under the name the Inland Group of Companies.

      


      Investment
Criteria:  The criteria set forth on Exhibit A
hereto.

      


      Investment
Entities:  111 Debt Acquisition LLC, a Delaware limited
liability company, 111 Debt Acquisition - Two LLC, a Delaware limited liability
company, 111 Debt Acquisition-Putnam LLC, a Delaware limited liability company,
111 Debt Acquisition-Key LLC, a Delaware limited liability company, 111 Debt
Acquisition-Three LLC, a Delaware limited liability company, 111 Debt
Acquisition-UBS LLC, a Delaware limited liability company, 111 Debt
Acquisition-Green Two LLC, a Delaware limited liability company, 111 Debt
Acquisition MS LLC, a Delaware limited liability company, 111 Debt
Acquisition-Mezz LLC, a Delaware limited liability company, each of which has
been formed for the sole purpose of acquiring and disposing of Loan Assets, and
their respective subsidiaries, if any, including Concord Debt Funding Trust, a
Maryland real estate investment trust, together with any additional entities in
which the Company holds a direct or indirect ownership interest, including
Sidecar Investment Entities.

      
         

        
          
             

          

          
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      Lex-Win:  As
defined in the Preamble.

      


      Loan
Assets:  Real estate securities and real estate related loans
and interests therein including, without limitation, whole loans, B Notes,
participation interests, mezzanine loans, and CMBS bonds.

      


      Managing
Member:  Lex-Win, it successors and assigns.

      


      Managing Member Preferred
Capital:  All Capital Contributions made by the Managing Member
pursuant to Section 3.7(a) hereof.

      


      Managing Member Preferred
Capital Return:  A preferred rate of return equal to (x) in the
case of Managing Member Preferred Capital made pursuant to clause (i) of Section
3.7(a), the Company’s blended cost of its third party Short Term Debt
outstanding at the time the applicable Managing Member Preferred Capital is
contributed, (y) in the case of Managing Member Preferred Capital made pursuant
to clause (ii) of Section 3.7(a), the rate charged under the Credit Facility for
which the Advance Rate Paydown was applied, or (z) in the case of Managing
Member Preferred Capital made pursuant to clause (iii) of Section 3.7(a), the
blended rate of interest paid by the Company on its Credit Facilities; provided,
however, with respect to Managing Member Preferred Capital contributed pursuant
to clause (i) or (iii) of Section 3.7(a), if the applicable Managing Member
Preferred Capital is not fully returned by the Company on or prior to the date
that is 12 months after such Managing Member Preferred Capital is contributed to
the Company, the Managing Member Preferred Capital Return with respect to such
Managing Member Preferred Capital shall be reduced by 50 basis
points.

      


      Managing Member Priority
Return:  An amount equal to a 10% per annum return on the
Managing Member’s Unreturned Capital Contributions, calculated on a daily basis
in order to take account of changes from time to time in the amount of such
Unreturned Capital Contributions.

      


      Match Funded
Debt:  Indebtedness that is (i) structured to correspond to the
term of repayment of the underlying asset and (ii) secured only by the
underlying asset.

      


      Maximum Capital
Contribution:  The amount set forth opposite each Member’s name
on Schedule 1
hereto under the heading “Maximum Capital Contribution.”

      


      Member
Loan:  As defined in Section 3.5 hereof.

      


      Member Nonrecourse Debt
Minimum Gain:  Means partner non-recourse debt minimum gain as
determined in accordance with Regulations Sections 1.704-2(i)(3) and
1.704-2(i)(4).

      


      Member Nonrecourse
Debt:  Has a comparable meaning to the meaning set forth in
Regulations Section 1.704-2(b)(4).

       

      
        
           

        

        
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      Member Nonrecourse
Deductions:  Has a comparable meaning to the meaning set forth
in Regulations Section 1.704-2(i)(2).

      


      Members:  Lex-Win,
the Initial Preferred Member and such other Persons who become party hereto in
accordance with the terms hereof, together with their permitted successors and
assigns.

      


      Minimum Common Equity
Threshold:  (i) During the Commitment Period, $200,000,000 and
(ii) after the expiration of the Commitment Period, the greater of
(A) $100,000,000 and (B) 200% of the aggregate Unreturned Capital
Contributions of the Preferred Members.

      


      Nonrecourse
Deductions:  Has the meaning set forth in Regulations Section
1.704-2(b)(1) and is determined in accordance with Section
1.704-2(c).

      


      Permitted
Exceptions:  (i) Senior Loans as permitted by Section 3.5(i)(3)
hereof, (ii) in the case of Lexington Realty Trust and its Affiliates,
Acquisition Entities (including Equity Securities in such Acquisition Entities
acquired with a view to the acquisition of such Acquisition Entity) and
acquisitions by Acquisition Entities of Permitted Investments, (iii) Loan Assets
which for GAAP purposes are treated as something other than loans, (iv) Equity
Securities, or (v) Loan Assets then held by Lexington Realty Trust or
Winthrop Realty Trust or their respective Affiliates (except for the Company or
any Investment Entity).

      


      Permitted
Investments:  Equity Securities, Loan Assets and Senior
Loans.

      


      Permitted
Transfers.  Any of (i) Transfers to Affiliates of such Member,
(ii) Transfers of a direct or indirect interest in such Member provided that (x)
in the case of the Initial Preferred Member, the transferee is a member of the
Inland Real Estate Group of Companies and the members to the Advisory Committee
designated by the Initial Preferred Member are employees, directors, partners,
members or stockholders of a member of the Inland Real Estate Group of Companies
and (y) in the case of the Managing Member, Lexington Realty Trust, or its
subsidiary, or Winthrop Realty Trust, or its subsidiary, individually or
collectively control Lex-Win, (iii) Transfers between the members of
Lex-Win or (iv) Transfers of a direct or indirect minority interest in Lexington
Realty Trust pursuant to the acquisition of an Acquisition Entity.

      


      Person:  An
individual, trust, estate, partnership, joint venture, association, company,
corporation, limited liability company or other entity.

      


      Preferred Interest Purchase
Agreement:  That certain purchase agreement, dated as of the
date hereof, by and among the Company, Inland, Lex-Win and certain Affiliates of
Lex-Win.

      


      Preferred Member
Distribution Percentage:  An amount for each Preferred Member,
expressed as a percentage, equal to (i) such Preferred Member’s Unreturned
Capital Contributions divided by (ii) the Unreturned Capital Contributions of
all Preferred Members.

       

      
        
           

        

        
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      Preferred
Members:  The Initial Preferred Member, together with all such
other Persons who are admitted as Members of the Company in accordance with the
terms of this Agreement and classified as “Preferred Members.”

      


      Profit and
Loss:  With respect to each fiscal year or other period, an
amount equal to the Company's taxable income or loss for such year or period,
determined in accordance with Code Section 703(a) (for this purpose, all items
of income, gain, loss or deduction required to be stated separately pursuant to
Code Section 703(a)(1) shall be included in taxable income or loss), with the
following adjustments:

      


      (i)           Any
income of the Company that is exempt from Federal income tax and not otherwise
taken into account in computing Profits or Losses pursuant to this definition of
Profits and Losses shall be added to such taxable income or loss;

      


      (ii)           Any
expenditures of the Company described in Code Section 705(a)(2)(B) or treated as
Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section
1.704-1(b)(2)(iv)(i) and not otherwise taken into account in computing Profit or
Loss shall be subtracted from such taxable income or loss;

      


      (iii)           if
the Gross Asset Value of any Company asset is adjusted pursuant to clause (3) of
the definition of Gross Asset Value herein, the amount of such adjustment shall
be taken into account as gain or loss from the disposition of such asset for
purposes of computing Profits or Losses;

      


      (iv)           gain
or loss resulting from any disposition of Company property with respect to which
gain or loss is recognized for federal income tax purposes shall be computed by
reference to the Gross Asset Value of the property disposed of, notwithstanding
that the adjusted tax basis of such property differs from its Gross Asset
Value;

      


      (v)           in
lieu of the depreciation, amortization and other cost recovery deductions taken
into account in computing such taxable income or loss, there shall be taken into
account Depreciation for such Fiscal Year or other period, computed in
accordance with the definition of Depreciation herein;

      


      (vi)           to
the extent an adjustment to the adjusted tax basis of any Company asset pursuant
to Section 734(b) of the Code is required, pursuant to Treasury Regulations
Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital
Accounts as a result of a distribution other than in liquidation of a Partner’s
Interest in the Partnership, the amount of such adjustment shall be treated as
an item of gain (if the adjustment increases the basis of such asset) or loss
(if the adjustment decreases such basis) from the disposition of such asset and
shall be taken into account for purposes of computing Profits and Losses;
and

       

      
        
           

        

        
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      (vii)           notwithstanding
any other provisions of this definition of Profits and Losses, any items that
are specially allocated pursuant to Sections 4.2 and 4.3 hereof shall not be
taken into account in computing Profit or Losses.

      


      The
amounts of the items of Company income, gain, loss, or deduction available to be
specially allocated pursuant to Sections 4.2 and 4.3 shall be determined by
applying rules analogous to those set forth in subparagraphs (i) through (vi)
above.

      


      Public
Offering:  The registration for sale of securities of the
issuer under Section 5 of the Securities Act of 1933, as amended.

      


      Qualified
Arbitrator:  As defined in Section 10.1(d) hereof.

      


      Redemption
Amount:  Either (i) the Company Redemption Amount if the
Initial Preferred Member elects not to object to such amount, (ii) the amount
agreed to by the Managing Member and the Initial Preferred Member pursuant to
Section 10.1(c) hereof, or (iii) the amount determined by the Qualified
Arbitrator pursuant to the terms of Section 10.1(c) hereof.

      


      Redemption
Notice:  As defined in Section 10.1(a) hereof.

      


      Redemption Reply
Notice:  As defined in Section 10.1(c) hereof.

      


      Redemption
Return:  An amount equal to the distributions that would be
received by the Initial Preferred Member from the date of the applicable
Redemption Notice to the date of the full redemption of the Initial Preferred
Member’s Company Interest assuming the entire yield that is earned on the
Company’s investments during such period were distributed pursuant to Section
5.2 hereof and the Preferred Member Distribution Percentage of the Initial
Preferred Member were calculated as if the Initial Preferred Member was then
still a Preferred Member; provided, that in no
event shall a distribution of Unreturned Capital Contributions be counted twice
in the calculation of the Redemption Amount and the Redemption Return pursuant
to Section 10.1(e).

      


      Regulations:  The
final, temporary and proposed Income Tax Regulations promulgated under the Code,
as such regulations may be amended from time to time (including corresponding
provisions of succeeding regulations).

      


      Regulatory
Allocations:  Has the meaning set forth in Section 4.3
hereof.

      


      Reinvestment
Period:  The period from the date hereof to the 48-month
anniversary of the date hereof.

      


      REIT:  A
“real estate investment trust” within the meaning of Sections 856-860 of the
Code.

      


      Rejection
Notice:  As defined in Section 10.1(a) hereof.

       

      
        
           

        

        
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      REO
Property:  Any real property in which the Company holds a
direct or indirect interest as a result of the exercise of its remedies related
to a Loan Asset.

      


      Securitized
Entity:  A collateralized debt obligation entity,
collateralized mortgage backed securities and similar securitized entities
established by the Company or its subsidiary.

      


      Senior
Loan:  Any loan or participation interest in a loan that is
senior to a Loan Asset held by the Company.

      


      Senior Loan
Acquisition:  The acquisition of a Senior Loan.

      


      Short Term
Debt:  An amount equal to the aggregate principal amount
outstanding under all Credit Facilities with a maturity date of less than one
year (or 18 months including extension periods) minus Excluded Short
Term Debt.

      


      Short Term Debt
Limit:  An amount equal to the greater of:  (i) $750
million or (ii) 120% of the Company’s total equity capital, both preferred and
common and both contributed (but unreturned) and committed (but not
contributed).  For example, if the Company has capital contributed and
committed equal to $700 million, the Short Term Debt Limit would equal $840
million (700 x 1.20 = 840).  Notwithstanding the foregoing, upon 60
days notice to the Managing Member by Preferred Members holding a majority of
the Preferred Member Distribution Percentages, the 120% amount set forth in (ii)
above shall be reduced to 100% during the six month period following the second
anniversary of the date hereof.

      


      Sidecar
Investment:  An investment in a Sidecar Investment
Entity.

      


      Sidecar Investment
Entity:  A Person that (i) is not wholly-owned, directly or
indirectly, by the Company and (ii) holds or is formed for the purpose of
holding Loan Assets.

      


      Tax Matters
Partner:  As defined in Section 8.5 hereof.

      


      Total
Capitalization:  An amount equal to the sum of (i) Total Debt
and (ii) the Company’s total equity capital, both preferred and common,
calculated in accordance with GAAP (including with respect to
impairments).

      


      Total
Debt:  An amount equal to the aggregate principal amount
outstanding under all Credit Facilities other than Excluded Short Term
Debt.

      


      Total Debt/Capitalization
Ratio:  An amount equal to Total Debt divided by Total
Capitalization.

      


      Total Debt
Limit:  An amount of Total Debt that would cause the Total
Debt/Capitalization Ratio to exceed 75%.

       

      
        
           

        

        
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      Transfer:  Any
sale, conveyance, transfer or assignment, or the entry into any agreement to
sell, convey, transfer or assign, whether by law or otherwise, of, on, in or
affecting (y) all or part of a Member’s Company Interest (including any
legal or beneficial direct or indirect interest therein), or (z) any direct
or indirect interest in a Member (including any profit interest).  For
purposes hereof, a Transfer of an interest in a Member shall be deemed to
include (A) if a Member or controlling equityholder of a Member is a
corporation or trust, the voluntary or involuntary sale, conveyance or transfer
of such corporation’s stock or trust’s beneficial interests (or the stock or
beneficial interests of any corporation or trust directly or indirectly
controlling such corporation or trust by operation of law or otherwise) and
(B) if a Member or controlling equityholder of a Member is a limited or
general partnership, joint venture or limited liability company, the change,
removal, resignation or addition of a general partner, managing partner, limited
partner, joint venturer or member or the transfer of the partnership interest of
any general partner, managing partner or limited partner or the transfer of the
interest of any joint venturer or member.

      


      Unreturned Capital
Contribution:  As of any date, the aggregate Capital
Contribution by a Member on or before such date, as reduced (but not below zero)
by the amount by which distributions received by such Member on or before the
date of determination exceed (i) in the case of the Initial Preferred Member,
the Initial Preferred Member Return, and (ii) in the case of the Managing
Member, the Managing Member Preferred Return; provided, however, no
distributions on account of the Managing Member Preferred Capital shall be
deemed to reduce the Capital Contribution of the Managing Member for these
purposes.

      


      1.2           Other
Terms.  Unless the context shall require
otherwise:

       

      (a)           Words
importing the singular number or plural number shall include the plural number
and singular number respectively;

       

      (b)           Words
importing the masculine gender shall include the feminine and neuter genders and
vice versa;

       

      (c)           Reference
to “include”, “includes”, and “including” shall be deemed to be followed by the
phrase “without limitation”; and

       

      (d)           Reference
in this Agreement to “herein”, “hereof”, “hereby” or “hereunder”, or any similar
formulation, shall be deemed to refer to this Agreement as a whole, including
the Exhibits.

      


      ARTICLE
II

      GENERAL
PROVISIONS

      


      2.1           Continuation of the
Company.  The Members desire to continue the existence of the
Company under the Act pursuant to this Agreement.  The provisions of
the Act shall govern the rights and obligations of, and the relationships among,
the Members except as modified by the provisions of this Agreement.

       

      
        
           

        

        
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      2.2           Further
Action.  The Managing Member shall take any and all action, as
may be required, from time to time, under the laws of the State of Delaware to
give effect to and continue in good standing, the Company.

      


      2.3           Name of the Company; Foreign
Qualifications.  The name of the Company shall be Concord Debt
Holdings LLC, or such other name as the Managing Member may from time to time
determine.  The Managing Member shall have the right to cause the
Company to operate under one or more assumed names (which shall not include the
name of any Member or any similar name without such Member’s consent) where
required to comply with the laws of any states in which the Company is doing
business.  The Managing Member shall cause to be filed on behalf of
the Company such company or assumed or fictitious name certificate or
certificates or other similar documents as may from time to time be required by
law for the formation and continuation of the Company as a limited liability
company under the laws of Delaware applicable to a limited liability company and
the laws of such other states in which the Company is doing business regarding
the qualification of a foreign limited liability company.

      


      2.4           Business of the
Company.  The business of the Company shall be
to:  (i) acquire, own, hold, sell, transfer, hypothecate and
ultimately dispose of Permitted Investments both directly and indirectly through
Investment Entities; (ii) acquire, own, hold, sell, transfer, hypothecate and
ultimately dispose REO Properties both directly and indirectly through
Investment Entities and Sidecar Investment Entities; (iii) make, enter into,
perform and carry out any arrangements, contracts or agreements relating to the
foregoing, and (iv) do any and all things necessary or incidental to any of the
foregoing to carry out and further the business of the Company as contemplated
by this Agreement.  The Company shall not engage in any business or
activity not authorized by this Agreement.

      


      2.5           Place of Business;
Registered Agent.  The Company's principal place of business is
7 Bulfinch Place, Suite 500, P.O. Box 9507, Boston, Massachusetts 02114 or such
other place as the Managing Member may, from time to time,
determine.  The Company’s registered agent in Delaware shall be c/o
Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New
Castle County, Delaware 19808.  Such office and registered agent may
be changed from time to time in accordance with the Act, as may be approved the
Managing Member.

      


      2.6           Duration of the
Company.  The Company shall commence upon the filing of a
Certificate of Formation for the Company in accordance with the Act, and shall
continue until dissolved in accordance with Article XII of this
Agreement.

      


      2.7           Title to Company
Property.  A Member’s interest in the Company shall for all
purposes be personal property.  All property owned by the Company,
whether real or personal, tangible or intangible, shall be owned by the Company
as an entity, and no Member, individually, shall have any ownership interest in
that property.

       

      
        
           

        

        
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      ARTICLE
III

      MEMBERS; CAPITAL
CONTRIBUTIONS; FINANCING TRANSACTIONS

       

      3.1           Members.  (a)  Lex-Win
and Inland are hereby admitted as members in the Company.  The
respective names, business addresses, class of interest (common or preferred)
and Initial Capital Contribution and Maximum Capital Contribution of the Members
are as set forth on Schedule 1 and the
Members identified on Schedule 1 are, as of
this date, the only members in the Company.  The Managing Member shall
have the authority to amend Schedule 1 from time
to time to reflect any changes of address, the admission of any additional or
substitute Members in accordance with the terms of this Agreement or any changes
to the information set forth thereon (other than the Initial Capital
Contribution, Maximum Capital Contribution or class interest with respect to
Lex-Win or Inland).

       

      (b)           Subject
to the provisions of Section 3.8 and Article IX hereof, one or more Persons may
be admitted to the Company as additional Members.

       

      (c)           In
addition to any other requirements set forth in this Agreement, no Person shall
be admitted to the Company as an additional or substitute Member unless and
until such Person has accepted and agreed to all the provisions of this
Agreement by executing a counterpart signature page hereto or an amendment to
this Agreement.

      


      3.2           Capital.  The
capital of the Company shall consist of the amounts contributed to the Company
pursuant to this Article III.

      


      3.3           Initial Capital
Contributions.  The Managing Member has previously contributed
to the capital of the Company the aggregate amount set forth opposite its name
on Schedule 1
hereto under the heading “Initial Capital Contribution.”  On the date
hereof, Inland shall make an initial Capital Contribution to the Company by
contributing to the Company in immediately available funds the amount set forth
on Schedule 1
hereto opposite its name under the heading “Initial Capital Contribution”; provided, that Inland
shall receive a $250,000 credit to be applied to its Initial Capital
Contribution (from the first amounts otherwise required to be contributed) as
satisfaction of its underwriting fees in connection with its acquisition of its
Company Interests.  Notwithstanding anything in this Agreement to the
contrary, in no event shall the Managing Member cause the Company to use the
Initial Capital Contribution or any additional Capital Contribution of the
Initial Preferred Member for any purpose other than (A) to fund a Permitted
Investment, (B) to fund a Sidecar Investment, (C) Senior Loan Acquisition or (D)
in connection with an Advance Rate Paydown.

       

      3.4           Funding of Additional
Capital Requirements.  If, at any time or from time to time,
the Managing Member determines in its reasonable discretion that the Company or
an Investment Entity requires additional funds to enable the Company or an
Investment Entity to make a Permitted Investment, Sidecar Investment, Advance
Rate Paydown or Senior Loan Acquisition, the Managing Member shall take one or
more of the following actions:

       

      
        
           

        

        
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      (i)           during
the Commitment Period, cause the Company to obtain such additional funds from
the Preferred Members and the Common Members in accordance with the terms of
Section 3.5 hereof;

       

      (ii)           so
long as the Company is not then exceeding the Short Term Debt Limit or the Total
Debt Limit, cause the Company to seek to borrow the required additional funds
from any third-party lender; and/or

       

      (iii)           subject
to the provisions of Section 3.8 hereof, accept Capital Contributions from third
parties and admit such third parties as additional Members to the
Company.

      


      3.5           Additional Capital
Contributions.  If, pursuant to Section 3.4, the Managing
Member elects to obtain additional funds for the Company through Capital
Contributions of the Common Members and the Preferred Members, the Managing
Member shall deliver notice thereof to each Member (a “Capital Call”)
setting forth the total amount required (the “Capital Call
Amount”), and the purpose of such Capital Call.  The Capital
Call shall further set forth the amount of such Capital Call Amount required to
be contributed by each Member, which amount shall be determined as
follows:

      


      (i)           First,
but only during the Commitment Period, 100% of such Capital Call Amount shall be
made by the Initial Preferred Member until its Unreturned Capital Contributions
plus any capital contributions made by the Initial Preferred Member directly in
a Sidecar Investment Entity pursuant to clause (4) below equals one-half of the
Unreturned Capital Contributions of the Managing Member, but in no event more
than the Maximum Capital Contribution of the Initial Preferred Member; provided, however,

      


      (1)           no
such Capital Call shall be made on the Initial Preferred Member in an amount
less than $5,000,000, unless the remaining portion of the Maximum Capital
Contribution of the Initial Preferred Member is less than $5,000,000, in which
case the Capital Call Amount shall be such remaining amount,

      


      (2)           if
the purpose for the Capital Call is to fund an Advance Rate Paydown, the Initial
Preferred Member may elect to not make its Capital Contribution, in which case
the Managing Member shall make an additional Capital Contribution in accordance
with the provisions of Section 3.7 hereof;

      


      (3)           if
the purpose for the Capital Call is to fund a Senior Loan Acquisition, the
Initial Preferred Member may elect to not make its Capital Contribution, in
which case the Managing Member or its Affiliate shall have the option, but not
the obligation to, acquire the Senior Loan on its own behalf without any
restrictions set forth under this Agreement and neither the Initial Preferred
Member nor the Company shall have any rights with respect to such Senior Loan;
and

       

      
        
           

        

        
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      (4)           if
the purpose of the Capital Call is to fund a Sidecar Investment, the Initial
Preferred Member shall have the option (A) to make its Capital Contribution to
the Company, (B) to make a capital contribution directly to the Sidecar
Investment Entity or (C) to elect not to make a Capital Contribution with
respect to such Sidecar Investment, in each case in accordance with Section
14.4.

      


      (ii)           thereafter,
as may be agreed by the Members (provided that the
Initial Preferred Member is under no obligation to agree to or make a further
contribution).

      


      Each of
the Members shall be obligated to make their respective additional Capital
Contribution to the Company in immediately available funds within fifteen (15)
days of receipt of the Capital Call.  If a Member fails to make a
Capital Contribution required hereunder, the other Members shall have the right,
but not the obligation, to satisfy such Member’s Additional Capital Contribution
by making a loan (a “Member Loan”) to the
Company equal to the product of (i) the amount of the defaulting Member’s
additional Capital Contribution and (ii) a fraction, the numerator of which is
such Member’s Capital Percentage and the denominator of which shall be the
aggregate Capital Percentages of all Members electing to make a Member Loan to
the Company.  All Member Loans shall bear interest at a rate of 15%
per annum, compounded annually, and shall be payable from the assets of the
Company and prior to any distributions payable pursuant to Article V
hereof.

      


      3.6           Special Common Member
Capital Contributions.  Notwithstanding anything in this
Agreement to the contrary, at such time, if at all, as the aggregate Unreturned
Capital Contributions of the Common Members is less than the Minimum Common
Equity Threshold, then the Common Members shall immediately make an additional
Capital Contribution equal to the amount sufficient to cause the aggregate
Unreturned Capital Contributions of the Common Members to be not less than the
Minimum Common Equity Threshold.  In the event that the aggregate
Unreturned Capital Contributions of the Common Members is less than the Minimum
Common Equity Threshold at the end of two successive months, then beginning on
the first day of the next successive month, the Initial Preferred Member shall
be entitled to a Distribution Rate Step-Up until such time as the aggregate
Unreturned Capital Contributions of the Common Members is not less than the
Minimum Common Equity Threshold.  For purposes of this
Section 3.6, the Unreturned Capital Contribution of a Member shall be
adjusted by the amount of any impairment charged to such Member’s equity in
accordance with GAAP so long as the impairment is deemed other-than-temporary
and the applicable Permitted Investment for which such impairment relates is
then in default.

       

      3.7           Managing Member Preferred
Capital Contribution.  (a)  At such time or times, if
at all, as (i) the Company’s Short Term Debt exceeds its Short Term Debt Limit,
(ii) the Managing Member is required to make an additional Capital Contribution
pursuant to the terms of Section 3.5(i)(2) to fund an Advance Rate Paydown, or
(iii) the Total Debt Limit is exceeded, the Managing Member shall, in the case
of a clause (ii), or may, in the case of clauses (i) or (iii), make an
additional Capital Contribution to the Company equal to (x) in the case of an
Additional Capital Contribution pursuant clause (i) the positive difference
between (1) the total outstanding Short Term Debt and (2) the Short Term Debt
Limit, (y) in the case of an additional Capital Contribution pursuant to
clause (ii), such Capital Call Amount and (z) in the case of an additional
Capital Contribution pursuant to clause (iii), the positive difference between
(1) the Total Debt and (2) the Total Debt Limit; provided, however, in no event
shall the unreturned Managing Member Preferred Capital outstanding at any time
exceed $75,000,000.

       

      
        
           

        

        
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      (b)           Within
five (5) days after the Managing Member makes a Capital Contribution of Managing
Member Preferred Capital pursuant to Section 3.7(a), the Managing Member shall
provide the Initial Preferred Member with written notice specifying (i) the
amount and purpose of such Capital Contribution, (ii) Managing Member Preferred
Capital Return with respect to such Capital Contribution and (iii) the date of
such Capital Contribution.

       

      3.8           Additional Member Capital
Contributions.  (a)  Subject to complying with the
terms of this Section 3.8, the Managing Member shall have the right to admit one
or more Persons as members of the Company (each an “Additional Member”)
with such rights and obligations as the Managing Member shall determine in its
sole discretion.  Upon admission of any new Member (i) such Member
shall be designated as a Preferred Member, Common Member or such other
classification as the Managing Member shall elect based on such new Member’s
rights and obligations hereunder and (ii) subject to Sections 7.2, 7.3 and 15.3
hereof, the Managing Member is authorized to amend this Agreement without any
further action on the part of any other Member to reflect the admission of such
new Member and its rights and obligations hereunder.

      


      (b)           Prior
to the earlier of (i) second anniversary of the date hereof and (ii) the sixth
month anniversary after the date on which the Initial Preferred Member is no
longer required to make any further Capital Contributions hereunder, if the
Managing Member elects to obtain additional funds for the Company through the
acceptance of Capital Contributions from an Additional Member, the Managing
Member shall provide notice thereof to the Initial Preferred Member (the “Additional Investor
Notice”).  The Initial Preferred Member shall have the right by
giving an irrevocable written notice to the Managing Member no later than thirty
(30) days after the date on which the Additional Investor Notice is delivered to
the Initial Preferred Member to elect to make a further additional Capital
Contribution to the Company in an amount up to the maximum additional capital
being sought by the Company from Additional Members as set forth in the
Additional Investor Notice, which Capital Contributions shall have rights and
obligations at least as favorable to the Initial Preferred Member as the terms
and obligations set forth in such Additional Investor Notice.  In the
event that the Initial Preferred Member does not elect to contribute funds in
the amount set forth in the Additional Investor Notice, the Managing Member may
then accept Capital Contributions from any Additional Member pursuant to the
terms of this Section 3.8; provided that no
equity interests in the Company may be sold to Persons other than the Initial
Preferred Member under terms that are more favorable to such Person than those
set forth in the Additional Investor Notice.  Notwithstanding anything
in this Section 3.8 to the contrary, in no event shall the Company be permitted
to make any Capital Call or accept any Capital Contributions from an Additional
Member pursuant to this Section 3.8 unless (i) the Unreturned Capital
Contributions of the Managing Member is at least 65% of the total Unreturned
Capital Contributions of all Common Members after giving effect to the Capital
Contributions to be made by such Additional Members, (ii) at least 75% of the
Initial Preferred Member’s Maximum Capital Contributions has been called and
used by the Company to acquire Permitted Investments and (iii) the right to
distributions of the holder of any such equity pursuant to Article V hereof is
subordinate to the right to distributions of the Initial Preferred Member (with
respect to both the Initial Preferred Member Priority Return and the Initial
Preferred Member’s Unreturned Capital Contributions).

       

      
        
           

        

        
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      (c)           Subject
to the Act and this Section 3.8, any Company Interests issued to Additional
Members may be issued in one or more classes, or one or more series of any of
such classes, with such designations, preferences and relative, participating,
optional or other special rights, powers and duties as shall be determined by
the Managing Member, in its sole and absolute discretion without the approval of
any Member, and set forth in this Agreement or a written document thereafter
attached to and made an exhibit to this Agreement (each, a “Company Interest
Designation”); provided, that that
material terms of any Company Interest Designation shall be set forth in any
Additional Investor Notice.  Without limiting the generality of the
foregoing, the Managing Member shall have authority to specify (a) the
allocations of items of Company income, gain, loss, deduction and credit to each
such class or series of Company Interests; (b) the right of each such class
or series of Company Interests to share in Company distributions; (c) the
rights of each such class or series of Company Interests upon dissolution and
liquidation of the Company; (d) the voting rights, if any, of each such
class or series of Company Interests; and (e) the conversion, redemption or
exchange rights applicable to each such class or series of Company Interests;
provided, however, that none of
the foregoing shall alter in a manner adverse to the Initial Preferred Member,
the relative rights between the Managing Member and the Initial Preferred Member
provided herein.

      


      3.9           Capital
Accounts.  (a)  A Capital Account shall be
established and maintained for each Member.  Initially, the Capital
Account of each Member shall be credited with each Member’s respective Initial
Capital Contribution.  Thereafter, each Member’s Capital Account shall
be credited with any additional Capital Contributions made or contributed by
such Member and such Member’s allocable share of Profits, any individual items
of income and gain allocated to such Member pursuant to the provisions of
Article IV, and the amount of additional cash, or the Gross Asset Value of any
Company asset (net of any liabilities assumed by the Company and liabilities to
which the asset is subject), contributed to the Company by such Member or deemed
contributed to the Company by such Member in accordance with Regulations
Section 1.704-1(b)(2)(iv)(c).

       

      (b)           The
Capital Account of each Member shall be debited with the Member’s allocable
share of Losses, any individual items of expenses and loss allocated to such
Member pursuant to the provisions of Article IV, the amount of any cash
distributed to such Member and the Gross Asset Value of any Company asset (net
of any liabilities assumed by the Member and liabilities to which the asset is
subject) distributed to such Member or deemed distributed to such Member in
accordance with Regulations Section 1.704-1(b)(2)(iv)(c).

       

      (c)           In
the event that any Company Interest of a Member is transferred in accordance
with the terms of this Agreement, the transferee shall succeed to the Capital
Account of the transferor to the extent it relates to the transferred Company
Interest of such Member.

       

      
        
           

        

        
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      (d)           In
the event that the Gross Asset Value of any Company asset is adjusted as
described in the definition of “Gross Asset Value”, the Capital Accounts of all
Members shall be adjusted in accordance with Regulation
Section 1.704-1(b)(2)(iv)(f) or Regulation
Section 1.704-1(b)(2)(iv)(m), as applicable, to reflect such
adjustment.

       

      (e)           The
foregoing provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Regulation
Section 1.704-1(b) and shall be interpreted and applied in a manner
consistent with such Regulation.  In the event that the Managing
Member shall determine that it is prudent to modify the manner in which the
Capital Accounts, or any debits or credits thereto, are computed in order to
comply with such Regulation, the Managing Member may make such modification;
provided, however, that if such
modification constitutes a Material Modification, it shall become effective only
upon the consent of any Member to whom such modification would constitute a
Material Modification.

      


      3.10           Return of
Capital.  Except as otherwise agreed by the Members, or as
otherwise specifically provided herein, no Member shall be entitled to demand
the return of, or to withdraw, any part of his Capital Contribution or any
balance in his Capital Account, or to receive any distribution, except as
provided for in this Agreement.  Neither the Managing Member nor any
Member shall be liable for the return of the Capital Contributions of any other
Member and no Member shall have any obligation to restore the amount of any
deficit in its Capital Account to the Company.

      


      ARTICLE
IV

      ALLOCATIONS OF PROFIT AND
LOSS

      


      4.1           Allocations of Profit and
Loss.  Except as otherwise provided in this Article IV, Profit
and Loss for each Company fiscal year shall be allocated among the Members as
follows:

      


      (a)           such
Profit shall be allocated:

      


      (i)           first,
to the Members in an amount sufficient to reverse the total amount of Loss
previously allocated to the Members pursuant to Section 4.1(b)(ii) hereof, in
proportion to and in the reverse order as such Loss was allocated;

      


      (ii)           second,
to the Managing Member until it has been allocated an aggregate amount of Profit
under this Section 4.1(a)(ii) equal to the Managing Member Preferred Capital
Return;

      


      (iii)           third,
to the Initial Preferred Member until it has been allocated an aggregate amount
of Profit under this Section 4.1(a)(iii) equal to the Initial Preferred Member
Priority Return;

      


      (iv)           fourth,
to the Managing Member until it has been allocated an aggregate amount of Profit
under this Section 4.1(a)(iv) equal to the Managing Member Priority Return;
and

       

      
        
           

        

        
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      (v)           thereafter,
to the Members pro rata in accordance with their respective Capital Percentages,
except that with respect to the Initial Preferred Member’s pro rata portion, 30%
to the Managing Member and 70% to the Initial Preferred Member; but if the
Unreturned Capital Contributions of a Member have been reduced to zero, then 76
2/3% to the Managing Member and 23 1/3% to the Initial Preferred
Member.;

      


      (b)           Loss
shall be allocated as follows:

      


      (i)           
first, to the Members to offset the excess of the amount of Profit previously
allocated to such Members pursuant to Sections 4.1(a)(ii), (iii), (iv) and (v)
hereof, in proportion to and in the inverse order to the order in which such
Profit was allocated, over the total amounts previously distributed to the
members, excluding distributions which reduce Unreturned Capital Contributions,
pursuant to Sections 5.2, 5.3 or 5.4; and

      


      (ii)           thereafter,
to the Members pro rata in accordance with their respective Capital Account
balances.

      


      4.2           Regulatory
Allocations.  Prior to making the allocations provided for in
Section 4.1, the following allocations shall be made:

      


      (a)           Loss
Limitation.  Notwithstanding the preceding provisions of this
Article IV, no Loss shall be allocated to a Member to the extent it would
increase or cause such Member to have an Adjusted Capital Account Deficit as of
the end of a fiscal year.  Any Loss that cannot be allocated to a Member as
a result of this limitation shall be specially allocated to the other Members to
the extent that it will not cause such other Members to have an Adjusted Capital
Account Deficit.

      


      (b)           Qualified Income
Offset.  If a Member unexpectedly receives any adjustments,
allocations, or distributions described in Regulations Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or 1.704-1(b)(2)(ii)(d)(6), or
otherwise has an Adjusted Capital Account Deficit as of the end of a fiscal
year, items of Company income and gain shall be specially allocated to the
Member in an amount and manner sufficient to eliminate, to the extent required
by the Regulations, the Adjusted Capital Account Deficit of the Member as
quickly as possible; provided that an
allocation pursuant to this Section 4.2(b) shall be made only if and to the
extent that such Member would have an Adjusted Capital Account Deficit after all
other allocations provided for in this Article have been tentatively applied as
if this Section 4.2(b) were not in the Agreement.

      


      (c)           Minimum Gain
Chargeback.  Notwithstanding the preceding provisions of this
Article IV, except as otherwise provided in Regulations Section 1.704-2(f), if
there is a net decrease in the Company Minimum Gain during a fiscal year, then
each Member with a share of Company Minimum Gain shall be allocated items of
income and gain for that year (and, if necessary, subsequent years), in
accordance with Regulations Sections 1.704-2(f) and 1.704-2(j)(2)(i), in an
amount equal to such Member’s share of the net decrease in the Company Minimum
Gain.  This Section 4.2(c) is intended to comply with the minimum gain
chargeback requirement in Regulations Section 1.704-2(f) and shall be
interpreted consistently therewith.

       

      
        
           

        

        
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      (d)           Member Minimum Gain
Chargeback.  Notwithstanding any other provision of this
Article IV except as otherwise provided in Regulation Section 1.704-2(i)(4), if
there is a net decrease in the Member Nonrecourse Debt Minimum Gain during a
fiscal year, then after the allocation required by Section 4.2(c) but prior to
any other allocation for the year, each Member with a share of the Member
Nonrecourse Debt Minimum Gain shall be allocated income and gain for that year
(and, if necessary, subsequent years), in accordance with Regulations Section
1.704-2(j)(2)(ii), in an amount equal to such Member's share of the net decrease
in the Member Nonrecourse Debt Minimum Gain.  This Section 4.2(d) is
intended to comply with the partner minimum gain chargeback requirement in
Regulations Section 1.704-2(i)(4) and shall be interpreted consistently
therewith.

      


      (e)           Nonrecourse
Deductions.  Nonrecourse Deductions for each fiscal year shall
be allocated among the Members in proportion to their Capital
Percentages.

      


      (f)           Member Nonrecourse
Deductions.  Notwithstanding anything to the contrary herein,
Member Nonrecourse Deductions for each fiscal year shall be allocated to the
Member who bears the economic risk of loss with respect to the Member
Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in
accordance with Regulations Section 1.704-2(i)(1).

      


      4.3           Effect of Regulatory
Allocations.  The allocations set forth in Section 4.2 (the
"Regulatory Allocations") are intended to comply with certain requirements of
Regulations Sections 1.704-1(b) and 1.704-2.  The Regulatory
Allocations may not be consistent with the manner in which the Members intend to
divide Company Profit or Loss under Section 4.1. Accordingly, to the extent
permitted under Regulations Section 1.704-1(b), the Regulatory Allocations shall
be taken into account in allocating Profit, Loss and other items among the
Members so that the net amount of such allocations and the Regulatory
Allocations to each Member shall equal the net amount that would have been
allocated to each Member if the applicable Regulatory Allocations had not been
made.

      


      4.4           Other Allocation and
Distribution Rules.  (a)  Except as otherwise
provided in this Agreement, for each fiscal year of the Company, each item of
Company income, gain, loss and deduction shall be allocated among the Members in
the same proportions as they share Profit or Loss, as the case may be, for such
year.

      


      (b)           If
the Capital Percentages of the Members change during a fiscal year, then, unless
otherwise determined by the Members, Profit and Loss for such year shall be
allocated, and Distributions for such year pursuant to Section 4.1 shall be
made, using the interim closing of the books method as of the date of such
change, as if the pre-change portion (ending with, but not including, the date
of the change) and the post-change portion (commencing with the date of the
change) of such year were each separate fiscal years.

       

      
        
           

        

        
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      (c)           If
any Company Interest is transferred pursuant to and in compliance with Article
7, then, unless otherwise determined by the Members, Profit and Loss and other
items allocable to the transferred Company Interest shall be divided and
allocated between the transferor and the transferee by taking into account their
varying interests during the relevant period in accordance with Section 706(d)
of the Code using the interim closing of the books method as of the effective
date of such transfer.

      


      4.5           Tax Allocations; Code
Section 704(c) and 704(c) Type Allocations.  The following
allocations are solely for purposes of federal, state and local income taxes and
shall not affect or in any way be taken into account in computing any Member’s
Capital Account or share of Distributions:

      


      (a)           Section 704(c)
Allocations.  Notwithstanding Section 4.5(b), items of income,
gain, loss and deduction to be allocated for income tax purposes (collectively,
“Tax Items”) with respect to Company property that is subject to Code Section
704(c) and/or Regulation Section 1.704-1(b)(2)(iv)(f) (collectively, “Section
704(c) Tax Items”) shall, to the extent so required, be allocated using the
“traditional method” described in Regulations Section 1.704-3(b).

      


      (b)           Income Tax
Characterization.  For purposes of determining the character
(as ordinary income or capital gain) of any gain allocated to the Members
pursuant to Sections 4.1 or 4.2, such portion of the taxable income of the
Company which is treated as ordinary income attributable to depreciation
recapture shall, to the extent possible, be allocated among the Members in
proportion to and to the extent of the amount of tax depreciation previously
allocated to them.

      


      (c)           Allocations of Tax
Items.  Except as otherwise provided in Sections 4.5(a) and
(b), allocations of Company income, gain, loss, deduction and credit, as
computed for federal income tax purposes, for each fiscal year shall be
allocated among the Members in the same manner as the related items were
allocated for Capital Account purposes pursuant to Sections 4.1 and
4.2.

      


      4.6           Tax
Elections.  The Managing Member shall determine whether the
Company shall make any applicable tax elections.

      


      ARTICLE
V

      DISTRIBUTIONS

      


      5.1           General.  Subject
to Sections 5.2, 5.3 and 7.4(c) hereof, distributions shall be made not less
frequently than on the 21st day of
each month, or if such date is not a Business Day, on the next succeeding
Business Day, during the term hereof and at such other time or times as the
Managing Member shall determine.  The Managing Member shall cause the
Company to retain as reserves an amount it deems sufficient in its reasonable
judgment to meet the operating expenses of the Company and the Investment
Entities.  In no event shall any distributions be paid to any Member
until all Member Loans and interest due thereon are satisfied in
full.

       

      
        
           

        

        
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      5.2           Distributions of Cash
Flow.  At such times as the Managing Member elects to cause the
Company to make distributions from Cash Flow, such distributions shall be made
in the following order of priority:

      


      (i)           First,
to the Managing Member until it has received an amount equal to the Managing
Member Preferred Capital Return plus the Managing Member Preferred Capital,
which distributions shall be applied first to the Managing Member Preferred
Capital Returns of all Managing Member Preferred Capital and then to the
Managing Member Preferred Capital, in each case in the order in which such
Managing Member Preferred Capital was made;

      


      (ii)           Second,
to the Initial Preferred Member until it has received an amount equal to the
Initial Preferred Member Priority Return; provided, that the
Managing Member shall cause the Company to make distributions from Cash Flow to
the Initial Preferred Member (A) monthly, in an amount corresponding to not less
than (but need not be more than) an 8% per annum return on the Initial Preferred
Member’s Unreturned Capital Contributions and (B) calendar quarterly, in an
amount corresponding to the Initial Preferred Member Preferred Return, but
taking into consideration the aggregate amount of the prior distributions made
during such calendar quarter pursuant to clause (A); provided further,
that if distributions are not made to the Initial Preferred Member to the full
extent provided in clauses (A) and (B) (regardless of the sufficiency of Cash
Flow) for two consecutive months (whether the month is pursuant to clause (A) or
(B)), then beginning on the first day of the next successive month, the Initial
Preferred Member shall be entitled to a Distribution Rate Step-Up until such
time as the monthly distributions under clauses (A) and (B) are again made to
the Initial Preferred Member in an aggregate amount corresponding to not less
than the amounts provided in clauses (A) and (B);

      


      (iii)           Third,
to the Managing Member until it has received an amount equal to the Managing
Member Priority Return;

      


      (iv)           Fourth,
either (x) pari passu in accordance with Unreturned Capital Contributions,
between the Initial Preferred Member and the Managing Member, except that the
Managing Member shall receive 30% of the distributions otherwise payable to the
Initial Preferred Member under this clause (iv) as a promoted interest or (y) if
the Unreturned Capital Contributions of a Member have been reduced to zero, 76
2/3% to Lex-Win and 23 1/3% to the Initial Preferred Member.

      


      5.3           Distributions of Capital
Proceeds.  At such times as the Managing Member elects to cause
the Company to make distributions from Capital Proceeds, such distributions
shall be made in the following order of priority; provided, that after
the expiration of the Reinvestment Period, distributions of Capital Proceeds
shall be made promptly upon receipt of any such Capital Proceeds:

       

      
        
           

        

        
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      (i)           First,
to the Managing Member until it has received an amount equal to the unpaid
Managing Member Preferred Capital Return plus the Managing Member Preferred
Capital, which distributions shall be applied first to the Managing Member
Preferred Capital Returns of all Managing Member Preferred Capital and then to
the Managing Member Preferred Capital, in each case in the order in which such
Managing Member Preferred Capital was made;

      


      (ii)           Second,
to the Initial Preferred Member until it has received an amount equal to the
unpaid Initial Preferred Member Priority Return;

      


      (iii)           Third,
to the Managing Member until its Unreturned Capital Contribution (excluding any
Managing Member Preferred Capital) is reduced to the Minimum Common Equity
Threshold;

      


      (iv)           Fourth,
to the Initial Preferred Member until its Unreturned Capital Contribution is
reduced to zero;

      


      (v)           Fifth,
to the Managing Member until it has received an amount equal to the unpaid
Managing Member Priority Return;

      


      (vi)           Sixth,
to the Managing Member until its Unreturned Capital Contribution is reduced to
zero;

      


      (vii)           Thereafter,
76 2/3% to Lex-Win and 23 1/3% to the Initial Preferred Member.

      


      5.4           Distribution upon Public
Offering.  At such time as the Company elects to make a Public
Offering of its securities, each Member’s interest in the Company will be deemed
redeemed in exchange for a number of shares in the “public entity” equal to (i)
the amount that such Member would be distributed pursuant to Section 5.3 hereof
if the Company were then liquidated at a value equal to the value attributed to
the Company’s assets in the Public Offering divided by (ii) the per share offer
price inclusive of the underwriter’s discount.

      


      ARTICLE
VI

      FEES

      


      6.1           General.  The
Managing Member will be responsible for all of its operational expenses,
including the salaries of its personnel, rent, utilities, and other items coming
under the category of overhead.  The Managing Member will not be
responsible for any expenses set forth in Section 6.2.

       

      
        
           

        

        
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      6.2           Expenses.  The
Company will bear all reasonable and necessary (i) expenses in connection with
its and each Investment Entity’s organization which, at the option of the
Managing Member, may be advanced by the Managing Member, in which event the
Company will reimburse or otherwise compensate the Managing Member for these
expenses over such period as the Managing Member shall determine, (ii) third
party expenses of the Company and the Investment Entities including, without
limitation, legal, bookkeeping, accounting, administration, auditing, tax
preparation, insurance, administration, rating agency, subscription and related
charges, (iii) expenses associated with the admission of additional members,
(iv) all transaction costs and investment-related expenses incurred in
connection with the Company’s investment activities, as well as the costs of any
independent accountants or other experts or consultants engaged by the Managing
Member in connection with specific transactions, (v) any interest, fees and
costs of Company or Investment Entity-related borrowings, (vi) extraordinary
expenses (including litigation and indemnification costs), if any, involving the
Company, and (vii) the fees set forth in Section 6.3, 6.4 and 6.5.

      


      6.3           Loan Asset
Fees.  The Managing Member or its Affiliate shall
receive:

      


      (i)           a
fixed fee (the “Management Fee”) from
the Company as compensation for services to the Company in an amount equal to
0.25% per quarter calculated as of the last day of each calendar quarter (a 1.0%
annual rate) of the Unreturned Capital Contributions of the
Members.  The Management Fee will be payable quarterly in arrears
within fifteen (15) days after the end of the calendar quarter to which it
relates;

      


      (ii)           a
one-time transaction fee (the “Transaction Fee”)
from the Company as compensation for each acquisition of a Loan Asset in an
amount equal to 0.275% of the purchase price for such Loan Asset inclusive of
any debt assumed with respect to such Loan Asset.  The Transaction Fee
shall be payable simultaneous with the closing of the acquisition of the Loan
Asset;

      


      (iii)           a
one time securitization fee (the “Securitization Fee”)
from the Company as compensation for arranging the securitization of Loan Assets
in a Securitized Entity equal to 0.075% of the Gross Asset Value of such
Securitized Entity (not to exceed $300,000 per securitization).  The
Securitization Fee shall be paid simultaneous with the closing of the applicable
Securitized Entity;

      


      provided, however, the Company
shall offset against any of the Management Fee, the Transaction Fee or the
Securitization Fee the amount of any fees actually paid to the Managing Member
or its Affiliate for providing on-going collateral management or other services
to a Securitized Entity.

      


      6.4           Property Management
Fees.  At such time, if at all, as the Company or an Investment
Entity shall acquire an REO Property, the Managing Member or its Affiliate shall
be entitled to receive a property management fee from the Company or the
applicable Investment Entity equal to (x) 4% of the gross revenues of the REO
Property if the REO Property is a multi-family property, (y) 3% of the gross
revenues of the REO Property if the REO Property is an office, retail or
mixed-use property, or (z) 1% of the gross revenues of the REO Property if the
REO Property is a warehouse or single tenant property.

      


      6.5           Construction Management
Fees.  At such time, if at all, as the Company or an Investment
Entity shall acquire an REO Property, the Managing Member or its Affiliate shall
be entitled to receive a construction management fee from the Company or the
applicable Investment Entity equal to 3% of the gross construction costs
relating to all construction projects and tenant improvements at such REO
Property.

       

      
        
           

        

        
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      ARTICLE
VII

      MANAGEMENT

      


      7.1           Management of the
Company.  (a)  Except as otherwise provided herein,
the overall management and control of the business and affairs of the Company
shall be vested in the Managing Member.  Except as otherwise provided
herein, the Managing Member shall have and may exercise, on behalf of the
Company, all powers and rights necessary, proper, convenient or advisable to
effect and carry out the purposes, business and objectives of the Company and as
permitted under the Act.  Except as otherwise provided herein, no
Member shall have any rights with respect to the management or control of the
Company.  The Managing Member may delegate to any person or persons,
including affiliates of the Managing Member, any of the duties, powers and
authority vested in it hereunder on such terms and conditions as it may consider
appropriate.

      


      (b)           Subject
to any and all limitations expressly set forth in this Agreement (including
without limitation Section 7.3), the Managing Member shall perform, or cause to
be performed, the coordination of all management and operational functions
relating to the business of the Company.  Without limiting the
generality of the foregoing, except as set forth in Section 7.3(a), the Managing
Member is expressly authorized on behalf of the Company to:

       

      (i)           originate
and acquire Permitted Investments and Sidecar Investments on such terms and
conditions as the Managing Member shall deem advisable; provided that the
Managing Member will provide the Initial Preferred Member with a copy of any
loan package prepared in connection with any investment, in advance of making
the investment;

       

      (ii)          at
any time during the Reinvestment Period, reinvest amounts paid to the Company as
principal from its Permitted Investments;

       

      (iii)         cause
the Company to enter into Credit Facilities, which may be secured or unsecured,
in all cases on such terms and conditions as the Managing Member shall determine
and enter into such agreements as may be necessary to evidence such
financing;

       

      (iv)         form
Securitized Entities and cause such Securitized Entities to issue debt
instruments and to sell equity interests therein;

       

      (v)          open,
maintain and close, in the name of the Company, bank accounts, and draw checks
or other orders for the payment of money;

       

      (vi)         enter
into agreements and contracts with third parties, terminate such agreements and
institute, defend and settle litigation arising therefrom and give receipts,
releases and discharges with respect to all of the foregoing and any matters
incident thereto;

       

      
        
           

        

        
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      (vii)          maintain
adequate records and accounts of all operations and expenditures and furnish the
Members with the reports required hereunder;

       

      (viii)         take
and hold all property of the Company, real, personal and mixed, in the name of
the Company, or in the name of a nominee authorized by the Managing Member but
on behalf of the Company;

       

      (ix)           sell,
lease, exchange or otherwise dispose of all or any portion of the assets of the
Company;

       

      (x)           
take all such action as the Managing Member reasonably deems advisable in order
to enforce its rights and remedies with respect to Permitted
Investments;

       

      (xi)           
take all such action as may be reasonably deemed advisable in connection with
the ownership of an REO Property;

       

      (xii)           employ
consultants, experts, accountants, auditors, attorneys, brokers, engineers,
custodians, escrow agents, administrators, and any other third parties,
including without limitation affiliated entities of the Managing Member (but
only on arms length terms), deemed necessary by the Managing Member, and
terminate such employment;

       

      (xiii)           pay,
extend, renew, modify, adjust, submit to arbitration, prosecute, defend or
compromise, upon such terms as it may determine and upon such evidence as it may
deem sufficient, any obligation, suit, liability, cause of action or claim,
including relating to taxes, either in favor of or against the
Company;

       

      (xiv)          admit
additional Members in accordance with Section 3.8 and Article IX
hereof;

       

      (xv)           determine
the accounting methods and conventions to be used in the preparation of the tax
returns referred to in Section 8.3, and make such elections under the tax laws
of the United States, the several states and other relevant jurisdictions as to
the treatment of items of income, gain, loss, deduction and credit of the
Company, or any other method or procedure related to the preparation of such
returns;

       

      (xvi)          make
(and if made, revoke) the elections referred to in Sections 475, 754 or other
provisions of the Code.  Each of the Members will, upon request,
supply the information necessary to properly give effect to any such
election;

       

      
        
           

        

        
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      (xvii)         pay
or authorize the payment of distributions to Members pursuant to Article V;
and

       

      (xviii)        prosecute,
defend, settle or compromise actions or claims at law or in equity at the
Company’s expense as may be necessary or proper to enforce or protect the
Company’s interests, and satisfy any judgment, decree or decision of any court,
board or authority having jurisdiction or any settlement of any suit or claim
prior to judgment or final decision thereon, first, out of any insurance
proceeds available therefor, and then, out of the Company’s assets.

       

      7.2           Establishment and Authority
of the Advisory Committee.  (a)  The Members hereby
establish a committee (the “Advisory Committee”) which shall consist of four
representatives, two designated by the Initial Preferred Member, and two
designated by Lex-Win.

      


      (b)           Notwithstanding
anything to the contrary in this Agreement, in the event that both Michael
Ashner and Peter Braverman cease to be members of the Advisory Committee (or any
successor body serving a similar function), then (i) the Initial Preferred
Member may elect not to make any additional Capital Contributions pursuant to
Section 3.5, and (ii) the Managing Member shall cause the Company to not, in
each case without the consent of the Initial Preferred Member (which consent may
be withheld in the Initial Preferred Member's sole discretion) (A) make any
additional Permitted Investments or Sidecar Investments or (B) reinvest Capital
Proceeds from its Permitted Investments or Sidecar Investments.

      


      7.3           Limitation on the Managing
Member’s Authority.  (a)  Notwithstanding anything
herein to the contrary except Section 7.3(c), the Managing Member shall not have
the authority to do any of the following acts, except with the approval of a
majority of the members of the Advisory Committee, including, without
limitation, at least one member of the Advisory Committee designated by the
Member that is not then the Managing Member (which may be withheld in its sole
discretion):

       

      (i)           make
a Permitted Investment that does not satisfy the Investment
Criteria;

      


      (ii)          sell
any asset of the Company or an Investment Entity, or merge, consolidate or enter
into any other liquidating or change of control transaction with respect to the
Company or an Investment Entity;

      


      (iii)         the
admission of any Person as a Member except as provided in Section 3.8 and
Article IX hereof;

      


      (iv)         entering
into any transactions, agreements or other arrangements on behalf of the Company
or an Investment Entity with the Managing Member, a Member or their respective
Affiliates except as otherwise provided in Article VI of this
Agreement;

       

      
        
           

        

        
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      (v)          causing
the Company or an Investment Entity to make any Bankruptcy filing;

       

      (vi)         waiving
any of the provisions of Section 7.4 hereof;

       

      (vii)        approve
any budget or business plan of the Company;

       

      (viii)       appoint
any independent public accounting firm for the Company other than
PricewaterhouseCoopers LLP or KPMG LLP;

       

      (ix)          initiate,
settle or compromise any action or claim at law or in equity involving the
Company, an Investment Entity or a Permitted Investment;

       

      (x)           purchase
any real estate debt securities other than CMBS bonds;

       

      (xi)          purchase
any debt relating to a Permitted Investment after an event of default shall have
occurred with respect to such Permitted Investment;

       

      (xii)         dissolve
the Company;

       

      (xiii)        issue
any securities or other financings with respect to the Company, including but
not limited to a Public Offering;

       

      (xiv)        make
any additional Capital Contributions in excess of the Managing Member’s Maximum
Capital Contribution;

       

      (xv)         make
any Sidecar Investment;

       

      (xvi)        build
material reserves for the Company’s working capital pursuant to Section
5.1;

       

      (xvii)       enter
into any Credit Facility other than Credit Facilities existing on the date
hereof;

       

      (xviii)      make
any material capital expenditure on a REO Property;

       

      (xix)         make
Senior Loan Acquisitions in excess of $10,000,000 individually or $50,000,000 in
the aggregate; or

       

      (xx)          make
any amendment to this Section 7.3(a).

       

      (b)           Notwithstanding
anything herein to the contrary, the Managing Member shall not have the
authority to take any of the following actions without the prior written consent
of the applicable Member (which may be withheld in its sole
discretion):

      


      (i)           enter
into any agreement which would cause such Member to become personally liable on,
in respect of, or to guaranty, any indebtedness of the Company or an Investment
Entity; or

       

      
        
           

        

        
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      (ii)          any
amendment to this Agreement which adversely effects such Member’s rights or adds
to such Member’s obligations hereunder.

      


      (c)           Notwithstanding
anything herein to the contrary, in the event that the Initial Preferred Member
exercises its right to remove the Managing Member pursuant to Section 7.6
hereof, the Initial Preferred Member shall have the sole and exclusive right to
take any such action as it deems advisable with respect to (i) sales of all or
any assets of the Company, but not by way of a merger, consolidation or other
liquidating or change of control transaction unless the Members receive solely
cash consideration in connection with such transaction, (ii) the liquidation of
the Company, (iii) any Bankruptcy filing, or (iv) entering into any Credit
Facility to the extent necessary to protect the interest of the Company in its
assets.

      


      7.4           Special REIT
Rules.  (a)  Subject to Section 14.2, the Managing
Member and the Company shall use commercially reasonable efforts to cause the
Company to operate as if it were subject to the REIT rules of the Code described
below, except as otherwise permitted by prior written consent of the
Members:

       

      (i)           the
"75 percent gross income test" set forth in Section 856(c)(3) of the Code and
the "95
percent gross income test" set forth in Section 856(c)(2) of the Code;
and

       

      (ii)          the
gross assets tests set forth in Section 856(c) of the Code: (A) the "75 percent
asset test" set
forth in Section 856(c)(4)(A) of the Code, (B) the "25 percent asset test" set
forth in Section 856(c)(4)(B)(i) of the Code, (C) the "20
percent value limitation" set forth in Section 856(c)(4)(B)(ii) of the Code, (D)
the "5 percent value limitation" set forth in Section 856(c)(4)(B)(iii)(I) of
the Code and (E) the "10 percent vote and value limitations" set forth in
Sections 856(c)(4)(B)(iii)(II) and (III) of the Code.

       

      Notwithstanding
the foregoing, the Members hereby consent to the Company’s failure to comply
with the "5 percent value limitation" set forth in Section 856(c)(4)(B)(iii)(I)
of the Code solely with respect to the Company’s ownership of that certain Loan
Asset listed on Schedule 7.4
hereto.  For purposes of the foregoing tests, any ”mezzanine” loans
secured by an equity interest in an entity and any interest therefrom shall not
be treated as satisfying such tests unless such loans and interest are in
substantial compliance with the requirements of Revenue Procedure 2003-65,
except as otherwise permitted by prior written consent of the
Members.  It being acknowledged that “mezzanine” loans secured by
equity interests in a multi-tiered structure in which each entity in such
structure owns 100% of the equity interests of the entity in which it holds an
interest satisfy such requirement (assuming the other requirements of Revenue
Procedure 2003-65 are satisfied) regardless of the tier at which such
“mezzanine” loan is made.

       

      
        
           

        

        
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      (b)           The
Managing Member and the Company shall use commercially reasonable efforts to
cause the Company not to dispose of any real property in a transaction that
would be treated as a "prohibited transaction" within the meaning of Section
857(b)(6)(B)(iii) of the Code, unless (i) the transaction qualifies for the safe
harbor, set forth in Section 857(b)(6)(C) of the Code, applied to the Company as
if the Company were subject to Section 857(b)(6), taking into account any other
“safe harbor” transactions engaged in by the respective Member in determining
whether seven sales has occurred during the year, including any such
transactions engaged in by a joint venture, partnership or limited liability
company in which such Member invests (which information such Member will provide
to the Managing Member and Company upon written request), (ii) the transaction
is required under this Agreement, (iii) the property is disposed of in
connection with or in lieu of foreclosure, (iv) the property is transferred in a
tax free exchange under the Code, (v) the Members consent or (vi) the Advisory
Committee approves such transaction.

       

      (c)           Subject
to Section 14.2, the Managing Member and the Company shall use commercially
reasonable efforts to cause the Company to make distributions to the Members in
compliance with the “90% distribution requirement” of Section 857(a)(1) of the
Code, provided
that the Managing Member and the Company shall not be in violation of this
Section 7.4(c) if

       

      (i)           the
Company makes the distributions required by Article V of this Agreement,
and

      


      (ii)           the
distributions required by Article V of this Agreement are insufficient to
satisfy the 90% distribution requirement.  In such event, the Managing
Member shall

      


      (A)          notify
the Members of such insufficiency,

      


      (B)           notify
the Members of whether the Company’s Total Debt exceeds the Total Debt Limit,
and

      


      (C)           (1)
if the Company’s Total Debt does not exceed the Total Debt Limit, the Managing
Member shall not be required to incur debt to make additional distributions
unless a Member requests it, in which case the Managing Member and the Company
shall use commercially reasonable efforts to cause the Company to incur
additional debt (up to the Total Debt Limit) on commercially reasonable terms in
order to make such additional distributions to the requesting Member and (2) if
the Company’s Total Debt exceeds the Total Debt Limit less 5%, the Managing
Member shall not be required to incur additional debt to make additional
distributions to the Members, unless both Members consent, in which case the
Managing Member and the Company shall use commercially reasonable efforts to
cause the Company to incur additional debt on commercially reasonable terms in
order to make such additional distributions to both Members.

      


      Notwithstanding
anything to the contrary in Article V, in no event shall the Managing Member or
the Company have any liability to a Member or its Affiliates with respect to the
Company’s failure to comply with the distribution requirements of this Section
7.4 to the extent that such failure is attributable to the use of cash to
acquire a Permitted Investment or to fund a capital expenditure during the
Reinvestment Period pursuant to the terms of this Agreement.

       

      
        
           

        

        
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      (d)           Without
limiting the foregoing, the Managing Member and the Company shall take such
other reasonable steps as shall be requested in writing in good faith by each
Member, which the requesting Member believes in good faith is necessary in order
for its ultimate owning entity that has elected to qualify as REIT to continue
to qualify as a REIT (determined assuming that, without regard to its investment
in the Company, such ultimate parent entity  otherwise would qualify
as a REIT) and no other reasonable steps or action could be taken by the
requesting Member (in lieu of the Company taking any requested steps) to enable
such parent to so qualify.

       

      (e)           Notwithstanding
anything to the contrary in this Agreement, in no event shall the Managing
Member or Company have any liability to a Member or Affiliate with respect to
its failure to qualify as a REIT so long as the Managing Member and Company have
acted in good faith and used commercially reasonable efforts to satisfy the
obligations set forth in this Section 7.4.

      


      7.5           Services of the Members;
Company Opportunities.  The Managing Member shall devote such
time and effort to the business of the Company as shall reasonably be necessary
to promote adequately the interests of the Company and the mutual interests of
the Members, and shall perform its duties with the same degree of care it
exercises with respect to Loan Assets where it is the sole participant; provided, however, it is
specifically understood and agreed that the Managing Member and its Affiliates
shall not be required to devote full time to the business of the Company and
that, except as otherwise provided in this Section 7.5 or in such other
agreements in effect from time to time among the two or more of the parties
hereto, the Managing Member and its Affiliates may at any time and from time to
time engage in and possess interests in other business ventures of any and every
type and description, and neither the Company nor the Members shall by virtue of
this Agreement or otherwise have any right, title or interest in or to such
independent ventures.  Notwithstanding anything to the contrary, the
Managing Member on its own behalf and on behalf of its Affiliates agrees that
from the date hereof through the date that is six months after the earlier of
(A) the date on which each Member has contributed its Maximum Capital
Contribution and (B) the end of the Commitment Period, the Managing Member and
its Affiliates (i) will offer to the Company all opportunities relating to
Permitted Investments (including Senior Loans), except that the Managing Member
and its Affiliates will have no obligation to offer to the Company, and are
expressly permitted to invest directly or indirectly (independent of the Company
and/or the Initial Preferred Member) in any opportunities constituting Permitted
Exceptions and (ii) will provide the Initial Preferred Member with prior
written notice of all opportunities relating to Sidecar Investments in order to
allow the Initial Preferred Member a reasonable period of time to participate in
such Sidecar Investment in the manner described in Section 3.5(i)(4) and
Section 14.4.

       

      
        
           

        

        
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      7.6           Removal of Managing
Member.  At such time, if at all, as a Default Event with
respect to the Managing Member occurs and the Initial Preferred Member has not
elected to exercise it rights under Section 10.1 hereof, then the Initial
Preferred Member shall have the right upon at least ten (10) Business Days prior
written notice to the Managing Member, and provided such Default Event is not
cured with such 10-Business Day period, to remove the Managing Member as
managing member of the Company and appoint such Person as the new managing
member of the Company as the Initial Preferred Member shall deem appropriate,
which Person may be an affiliate of the Initial Preferred Member.  Any
removal of the then-Managing Member provided for in this Section 7.6 shall have
no effect or impact on such Member’s rights as a Member
hereunder.  Notwithstanding anything to the contrary in this
Agreement, (i) upon the removal of the Managing Member fees under Section 6.3
and 6.4 shall no longer be payable to the Managing Member but instead shall be
payable to the new Person or Persons performing such functions and (ii) upon the
removal of the Managing Member, the subsequent cure of a Default Event with
respect to Lex-Win shall not give Lex-Win or its Affiliates the right to again
become the Managing Member hereunder.

       

      7.7.           Meeting of the Advisory
Committee and the Members.  (a)  At such times as a
vote of the Advisory Committee or the Members is required hereunder or by law,
the Managing Member shall cause a notice to be sent to each Advisory Committee
member or each Member, as the case may be, at least five (5) Business Days prior
to the date of such meeting which notice shall (A) specify the place, date and
hour of the meeting and the actions to be voted upon, consented to, approved or
affirmed at such meeting and (B) be accompanied by such documentation or other
information as is reasonable for each such Advisory Committee member or Member
to make a reasonably informed decision on the matter(s) to be voted
on.  Attendance by an Advisory Committee member or Member, as the case
may be, at a meeting of the Advisory Committee or Members, as the case may be,
shall constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened.  All decisions to be made by the Advisory
Committee shall require the approval of a majority of the members of the
Advisory Committee, including without limitation, at least one Member of the
Advisory Committee designated by the Initial Preferred Member.

      


      (b)           Advisory
Committee members or Members, as the case may be, may participate in a meeting
by means of a conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute presence in person at
such meeting.

      


      (c)           Any
action required or permitted to be taken at any meeting or otherwise requiring
the affirmation, vote, consent or approval of the Advisory Committee members or
the Members, as the case may be, may be taken without a meeting if the Advisory
Committee members or Members, as the case may be, necessary to affirm, vote for,
consent to or approve, the same at a meeting do so in writing, and the writing
or writings are filed with the minutes of proceeding of the Advisory Committee
or the Members, as the case may be.

      


      (d)           The
Managing Member shall promptly advise all Members of any actions approved by the
Advisory Committee.

       

      
        
           

        

        
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      ARTICLE
VIII

      BOOKS AND RECORDS;
ACCOUNTS

      


      8.1           Books and
Records.  True and correct books of account with respect to the
operations of the Company shall be kept at the principal place of business of
the Company.  The Managing Member shall be responsible for keeping the
books of account.  The Company shall also maintain at its principal
place of business the following records:  (a) a current list of the
full name and last known business or residence address of each Member set forth
in alphabetical order, (b) a copy of the Certificate of Formation of the Company
and all certificates of amendment thereto, together with executed copies of any
powers of attorney pursuant to which any certificate has been executed, (c)
copies of the Company's Federal, state and local income tax returns and reports,
if any, for the three most recent years and (d) copies of this Agreement and any
amendments hereto and of any financial statements of the Company for the three
most recent years.  Any Member shall have the right, at its own
expense, to examine, or have its duly authorized representative examine, the
books of account of the Company and such other information reasonably related to
such Member's interest in the Company, and the Company shall make them available
at the office at which those books are maintained.

      


      8.2           Monthly, Quarterly and
Annual Reports.  (a)  The Managing Member shall
prepare and distribute to the Members within 10 days after the end of each month
a statement setting forth calculations of (i) Total Debt, (ii) Short Term Debt,
(iii) Cash Flow, (iv) the Initial Preferred Member Fixed Charge Coverage Ratio,
(v) the aggregate Unreturned Capital Contributions of the Common Members, (vi)
the aggregate Unreturned Capital Contributions of the Preferred Members and
(vii) Total Capitalization.

       

      (b)           The
Managing Member shall prepare and distribute to the Members within 25 days after
the end of each fiscal quarter a year-to-date consolidated report with respect
to the Company (with the last month of each such report comprised of forecasted,
rather than actual, results), prepared in accordance with GAAP, consistently
applied together with the independent accountant’s report, including (i) a
balance sheet, (ii) a profit and loss statement, (iii) a statement of changes in
the Members’ Capital Accounts and (iv) calculations in sufficient detail to
verify the accuracy of all fees and other amounts paid or payable to the
Managing Member or its Affiliates.

       

      (c)           The
Managing Member shall prepare and distribute to the Members within 55 days after
the end of each fiscal year audited financial statements with respect to the
Company.  Such financial statements shall be prepared in accordance
with GAAP and shall be audited at the Company’s expense by
PricewaterhouseCoopers LLP, KPMG LLP or such other nationally recognized firm of
independent certified public accountants approved by the Advisory Committee
pursuant to the terms hereof.  All reports delivered pursuant to this
Section 8.2 shall also include unaudited calculations in sufficient detail to
verify the accuracy of all distributions paid by the Company.

       

      (d)           So
long as Inland is a Member, the Managing Member shall prepare and distribute
such other reports, statements and information regarding the Company and any
Loan Assets as Inland may reasonably request from time to time.

       

      
        
           

        

        
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      8.3           Accountants; Tax
Returns.  (a)  Subject to Section 7.3(a), the
Managing Member shall engage such firm of independent certified public
accountants selected by the Managing Member to review, or to sign as preparer,
all federal, state and local tax returns which the Company is required to
file.  The Managing Member will furnish to each Member within 120 days
after the end of each calendar year, or as soon thereafter as is practicable, a
Schedule K-1 or such other statement as is required by the Internal Revenue
Service which sets forth such Member’s share of the profits or losses and other
relevant fiscal items of the Company for such fiscal year.  If
requested by a Member, the Managing Member shall deliver to such Member copies
of any federal, state and local income tax returns and information returns which
the Company is required to file.

       

      (b)           Each
Member agrees to report, on its own income tax returns each year, each item of
income, gain, loss, deduction and credit as reported by the Company to such
Member on the Schedule K-1 (or other similar tax report) issued by the Company
to such Member for such year.  Except as otherwise required by law, no
Member shall take any tax reporting position that is inconsistent in any respect
with any tax reporting positions taken by the Company or any entity in which the
Company owns any equity interest, and, in the event of a breach by such Member
of the provisions of this Section 8.3(b), such Member shall be liable to the
Company and the other Members for any costs, liabilities and damages (including,
without limitation, consequential damages) incurred by any of them on account of
such breach.

      
        


        8.4           Accounting and Fiscal
Year.  The Managing Member shall keep the Company’s books and
records on the accrual basis.  The fiscal year of the Company shall
end on December 31.

      

      


      8.5           Tax Matters
Partner.  The Managing Member is hereby designated the "Tax
Matters Partner" for the Company as such term is defined in Section 6231(a)(7)
of the Code (the “Tax Matters Partner”) and all federal, state and local tax
audits and litigation shall be conducted under the direction of the Managing
Member.  All expenses incurred with respect to any tax matter which
does or may affect the Company, including but not limited to expenses incurred
in connection with Company level administrative or judicial tax proceedings,
shall be paid out of Company assets.  The Tax Matters Partner shall,
promptly upon receipt thereof, forward to each Member a copy of any
correspondence relating to matters that are of material importance to the
Company and/or the Members.  The Tax Matters Partner shall promptly
advise each Member in writing of the substance of any  material
conversation held with any representative of the Internal Revenue Service which
relates to an audit or administrative proceeding relating to a tax return of the
Company.

      


      ARTICLE
IX

      ASSIGNABILITY OF
INTERESTS

      


      9.1           General
Conditions.  Whether or not otherwise permitted by this
Agreement, no Member shall Transfer all or any portion of its Company Interest,
or any rights to receive any distributions under this Agreement if, in the
opinion of counsel to the Company, which counsel is satisfactory to the
transferring Member, in its reasonable discretion, the Transfer would (a) cause
the termination or dissolution of the Company under the Act; (b) require
registration under the Securities Act of 1933, as amended, or under any other
securities law or result in the violation of any applicable state securities
laws; (c) cause the Company or any Member to be subject to any additional
regulatory requirements; (d) cause the Company to be taxed as a corporation
under the Code; or (e) with respect to the Managing Member, cause a default
under any agreement to which the Company is a party.

       

      
        
           

        

        
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      9.2           Transfer by
Members.  No Member may Transfer all or any portion of its
Company Interest other than in connection with a Permitted Transfer, without, in
the Initial Preferred Member’s case, the consent of the Managing Member, and
without, in the Managing Member’s case, the consent of the Initial Preferred
Member.

      


      9.3           Additional
Member.  A transferee of all or part of the Company Interest of
a Member permitted under this Agreement or any Additional Member shall be
admitted to the Company as a member and be listed as a Member on the books and
records of the Company only if (a) in the case of a Transfer, the transferring
Member gives such right to the transferee, (b) except for Transfers to an
Affiliate, the Managing Member (or the Initial Preferred Member in the case of a
Transfer by the Managing Member) consents to the admission of the transferee,
which consent may be withheld in the sole discretion of the party required to
grant consent, (c) the transferee or Additional Member shall execute and deliver
an agreement reasonably satisfactory to and approved by the Managing Member,
agreeing to assume and to be bound by and to comply with all of the terms and
conditions of this Agreement applicable to the Members, (d) the transferee or
Additional Member shall execute, and deliver all necessary certificates or other
documents and perform such other acts as may be required under the Act or other
applicable laws and regulations to effectuate the admission of such assignee as
a Member and to preserve the status and legal compliance of the Company as
reasonably satisfactory to and approved by the Members and (e) the transferee or
Additional Member shall pay all reasonable expenses of the Company and the
Members connected with the admission including, but not limited to, reasonable
legal and accounting fees and disbursements.

      


      9.4           Treatment.  Until
compliance with the provisions of Section 9.3, the Company shall be entitled to
treat the record owner of any Company Interest as the absolute owner of such
Company Interest in all respects and shall incur no liability for Distributions
made to such owner.

      


      9.5           Other Transfers
Void.  Any Transfer made in violation of the provisions of this
Article IX shall be null and void and shall not bind the Company or any
Member.

      


      9.6           No
Release.  In the event of any such Transfer by a Member in
compliance with the provisions of this Article IX, the transferor shall continue
to be obligated under this Agreement for any failure of the transferee to
perform any duty or obligation under this Agreement or otherwise to violate the
terms of this Agreement.

       

      
        
           

        

        
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      ARTICLE
X

      REDEMPTIONS; PUBLIC
OFFERING

      


      10.1           Right to
Redeem.                                           (a)  From
and after (i) the earlier of the date which is five (5) years after the date
hereof or the occurrence of a Default Event with respect to the Managing Member
which has not been cured and provided that the Initial Preferred Member has not
exercised its right to remove the Managing Member pursuant to Section 7.6
hereof, the Initial Preferred Member shall have the right to elect to have its
entire Company Interest redeemed by the Company, or (ii) the earlier of the date
which is five (5) years after the date hereof or the occurrence of a Default
Event with respect to the Initial Preferred Member which has not been cured, the
Managing Member shall have the right to cause the Company to elect to have the
entire Company Interest of the Initial Preferred Member redeemed.  At
such time as either the Initial Preferred Member or the Managing Member elects
to exercise the right set forth in the immediately preceding sentence, such
Member shall give written notice to such effect (the “Redemption Notice”)
to the Managing Member or the Initial Preferred Member, as
applicable.  If the Redemption Notice shall have been delivered by the
Managing Member on behalf of the Company, the Initial Preferred Member shall
have the right to reject such Redemption Notice by delivering notice to such
effect (a “Rejection
Notice”) within 10 Business Days of the date of the Redemption Notice to
the Managing Member in which case the Redemption Notice shall be deemed void and
the Initial Preferred Member shall no longer have any rights to issue a
Redemption Notice except following and during the continuance of a Default
Event.

      


      (b)           Upon
delivery of a Redemption Notice and so long as the Initial Preferred Member has
not delivered a Rejection Notice, the Initial Preferred Member shall no longer
be entitled to receive any distributions or other payment from the Company
except as contemplated by this Section 10.1, and except as set forth in Section
10.1(e) shall have no rights as a Member of the Company and shall solely have
rights as a creditor of the Company and the rights set forth in this Section
10.1.

      


      (c)           Unless
a Rejection Notice has been delivered, within 30 days of the date of receipt of
the Redemption Notice, the Managing Member shall be required to provide the
Initial Preferred Member with written notice (the “Redemption Reply
Notice”) which shall set forth:  (i) the Managing Member’s
determination of the Fair Market Value of all of the Company’s assets and
properties including all Permitted Investments and Sidecar Investments; (ii) the
Managing Member’s determination of the amount that the Initial Preferred Member
would receive pursuant to Section 5.3 hereof if the Company were then liquidated
and the Company received net proceeds equal to the amount determined in clause
(i) hereof plus the Company’s then cash reserves (the “Company Redemption
Amount”); (iii) whether the Managing Member is electing to cause the
Company to redeem the Initial Preferred Member’s interest pursuant to Section
10.1(e)(i) or 10.1(e)(ii) hereof; and (iv) all documentation supporting the
calculation of the amounts referred to in clauses (i) and
(ii).  Within two Business Days of the date on which the Redemption
Reply Notice is delivered to the Initial Preferred Member, the Company shall
deliver to the Initial Preferred Member an initial payment (the “Initial Redemption
Payment”) equal to the greater of:  (i) 20% of the Company
Redemption Amount; or (ii) 20% of the then Unreturned Capital Contributions of
the Initial Preferred Member.

       

      
        
           

        

        
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      (d)           The
Initial Preferred Member shall have a period of 30 days in which to object to
the Company Redemption Amount by delivering written notice thereof to the
Managing Member within such 30 day period.  If the Managing Member and
the Initial Preferred Member are unable to reach agreement as to the Fair Market
Value of the Company’s assets and the corresponding amount payable to the
Initial Preferred Member within 10 Business Days following receipt of the
Initial Preferred Member’s notice objecting to the Managing Member’s
determinations, then, within two Business Days of the expiration of such 10
Business Day period, each of the Company and the Initial Preferred Member shall
select a third party, who must be independent of all parties hereto, to act as
its arbitrator, and the two party-selected arbitrators shall select a third
arbitrator within 10 Business Days of their appointment.  If the
party-selected arbitrators are unable or fail to agree upon the third arbitrator
within the time provided, the third arbitrator shall be selected by the American
Arbitration Association (such agreed upon third party arbitrator is referred to
herein as the “Qualified
Arbitrator”).  Within 10 Business Days of the selection of the
Qualified Arbitrator, (i) the Company shall deliver to the Qualified
Arbitrator the Company Redemption Amount and (ii) the Initial Preferred
Member shall deliver to the Qualified Arbitrator the Initial Preferred Member’s
determination of the Fair Market Value of the Company’s assets and properties
including all Permitted Investments (the “Initial Preferred Member
Redemption Amount”).  Upon receipt by the Qualified Arbitrator
of the Company Redemption Amount and the Initial Preferred Member Redemption
Amount, (i) the Qualified Arbitrator may submit follow-up questions to either
party, and such parties shall have the right to respond to such questioning by
the Qualified Arbitrator, (ii) each party shall have the right to submit one
written response to the other party’s response to the Qualified Arbitrator
pursuant to subclause (i), and (iii) copies of all written materials submitted
to the Qualified Arbitrator (and summaries of all discussions with the Qualified
Arbitrator relating to the determination of the Fair Market Value of the
Company’s Permitted Investments) shall be promptly provided to the other
party.  The Qualified Arbitrator shall promptly deliver to the
Managing Member and the Initial Preferred Member its determination in writing,
which determination shall be made subject to the definitions and principles set
forth in this Agreement and shall select either the Company Redemption Amount or
the Initial Preferred Member Redemption Amount, and no compromise
position.  The fees and expenses of the Qualified Arbitrator shall be
paid one-half by the Company and one-half by the Initial Preferred
Member.  The determination of the Qualified Arbitrator shall be final,
binding and conclusive for purposes of this Section 10.1 and enforceable as an
arbitration award, and shall represent the exclusive remedy with respect to the
determination of the Redemption Value.

      


      (e)           The
Company shall redeem the Initial Preferred Member’s entire Company Interest
either:

      


      (i)           by
making a payment in immediately available funds to the Initial Preferred Member
by the later of (x) 120 days of the date of the Redemption Notice or (y) 30 days
after the final determination of the Redemption Value, of an amount equal to (1)
the Redemption Amount less the Initial Redemption Payment, plus (2) the
Redemption Return; or

      


      (ii)           by
making one or more payments in immediately available funds to the Initial
Preferred Member over a period of time not to exceed 24 months from the date of
the Redemption Notice, which payments aggregate the greater of;

      


      (1)    the sum of (x) the
Redemption Amount less the Initial Redemption Payment, and (y) a return thereon
equal to the greater of (A) 10% or (B) the Redemption Return, or

       

      
        
           

        

        
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      (2)    the aggregate
distributions that such Initial Preferred Member would receive if the Company
were liquidated on the date on which the Company satisfies its obligations under
this Section 10.1(e)(ii) less any payments made prior to such date pursuant to
clause (1) of this Section 10.1(e)(ii).

      


      If the
Company elects to redeem the Initial Preferred Member’s Company Interest
pursuant to Section 10.1(e)(ii) hereof, (i) the Company shall apply all Capital
Proceeds first to the satisfaction of the amounts payable to the Initial
Preferred Member pursuant to this Section 10.1(e) prior to making any
distributions of Capital Proceeds pursuant to Section 5.3 hereof,
(ii) while any amounts due to the Initial Preferred Member are outstanding,
the covenants and obligations of the Managing Member and the Company pursuant to
Article XIV of this Agreement shall remain in full force and effect and (iii)
the Initial Preferred Member shall have all other equitable rights as a creditor
of the Company permitted under applicable law.  If the Company fails
to make any payment to the Initial Preferred Member pursuant to this
Section 10.1(e) within ten (10) days after such amount is due, then each of
the following shall occur, in each case until such payment is made in full to
the Initial Preferred Member and as if the Initial Preferred Member were still a
Member under this Agreement: (i) a Default Event shall be deemed to have
occurred and continuing with respect to the Managing Member, and (ii) the
Initial Preferred Member shall have the right to remove the Managing Member
pursuant to Section 7.6.

      


      10.2           Public
Offering.  If the Company makes a Public Offering, the Initial
Preferred Member will have the right to elect to be the exclusive selling
equityholders in any secondary Public Offering during the first 24 months
following the closing of the Company’s initial Public
Offering.  Following the date that is 24 months following the closing
of the Company’s initial Public Offering, any securities to be sold by selling
shareholders shall be allocated among the Preferred Members and the Common
Members based on the number of securities then hold by each of them excluding
any securities acquired after the initial Public Offering.

      


      ARTICLE
XI

      REPRESENTATIONS AND
WARRANTIES

      


      11.1           Representations of the
Members.  Each of the Initial Preferred Member and the Managing
Member represents and warrants solely as to itself to each of the other Members
and the Company as follows:

       

      (i)           this
Agreement constitutes the valid and binding agreement of such Member,
enforceable against such Member in accordance with its terms, subject as to
enforcement of bankruptcy, insolvency and other similar laws affecting the
rights of creditors and to general principles of equity;

       

      (ii)          such
Member has been duly formed and is validly existing as a corporation, limited
partnership or limited liability company, as the case may be, in good standing
under the laws of the state of its formation, with all requisite power and
authority to enter into this Agreement, to carry out the provisions and
conditions hereof and to perform all acts necessary or appropriate to consummate
all of the transactions contemplated hereby;

       

      
        
           

        

        
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      (iii)         such
Member has all requisite power and authority to enter into this Agreement, to
carry out the provisions and conditions hereof and to perform all acts necessary
or appropriate to consummate all of the transactions contemplated hereby and no
further action by such Member is necessary to authorize the execution or
delivery of this Agreement;

       

      (iv)         this
Agreement has been duly and validly executed and delivered by such Member and
the execution, delivery and performance hereof by such Member does not and will
not (i) require the approval of any other Person, or (ii) contravene
or result in any breach of or constitute any default under, or result in the
creation of any lien upon such Member’s assets under, any indenture, mortgage,
loan agreement, lease or other agreement or instrument to which such Member is a
party or by which such Member or any of its assets is bound;

       

      (v)          the
consummation of the transactions contemplated herein will not result in any
violation of the organizational documents of such Member;

       

      (vi)         such
Member has the financial capacity to perform its obligations under this
Agreement;

       

      (vii)        except
as explicitly set forth herein, no finder’s, broker’s or similar fee or
commission has been paid or shall be paid by such Member to any individual or
organization in connection herewith;

       

      (viii)       there
is no action, suit or proceeding pending or, to its knowledge, threatened
against such Member that questions the validity or enforceability of this
Agreement or, if determined adversely to it, would materially adversely affect
the ability of such Member to perform its obligations hereunder;

       

      (ix)          such
Member is not the subject of any Bankruptcy;

       

      (x)           to
such Member’s knowledge, such Member has not received from any governmental
agency any notice of violation of any law, statute or regulation which would
have a material adverse effect on the Partnership;

       

      (xi)          to
such Member’s knowledge, such Member is not in default in the performance or
observation of any obligation under any agreement or instrument to which it is a
party or by which it or any of its assets is bound, which default would
individually or in the aggregate with other defaults materially adversely affect
the business or financial condition of such Member or the
Partnership;

       

      (xii)         such
Member’s true and correct social security or tax identification number, as the
case may be, is set forth below such Member’s name on Schedule 1 hereto;
and

       

      
        
           

        

        
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      (xiii)        such
Member (which for the purposes of this Section 11.1(m) includes its partners,
members, principal stockholders owning more than ten percent (10%) of the
outstanding capital stock of such Member, and any other constituent entities)
(1) has not been designated as a “specifically designated national and blocked
person” on the most current list published by the U.S. Treasury Department
Office of Foreign Assets Control at its official website, http://www.treas.gove/ofac/t11sdn.pdf
or at any replacement website or other replacement official publication of such
list, and (2) is currently in compliance with the regulations of the Office of
Foreign Asset Control of the Department of the Treasury and any statute,
executive order (including the September 24, 2001, Executive Order Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to
Commit, or Support Terrorism), or other governmental action relating
thereto.

       

      ARTICLE
XII

      DISSOLUTION, LIQUIDATION AND
TERMINATION

      


      12.1           Events of
Dissolution.  The Company shall be dissolved upon the happening
of any of the following events:

      


      (i)           The
disposition of all or substantially all of the assets of the
Company;

      


      (ii)           At
the election of the Managing Member with the consent of the Advisory
Committee;

      


      (iii)           The
entry of a decree of judicial dissolution under Section 702 of the
Act.

      


      Dissolution of the Company shall be
effective on the day the event occurs giving rise to the dissolution, but the
Company shall not terminate until the Certificate of Formation of the Company
have been canceled and the assets of the Company have been distributed as
provided herein.

      


      12.2           Limited Return of Capital
Contributions Upon Dissolution.  Each Member shall look solely
to the assets of the Company for all distributions with respect to the Company
and its Capital Contribution, and shall have no recourse therefor (upon
dissolution or otherwise) against any Member.  Notwithstanding the
dissolution of the Company, the business of the Company and the affairs of the
Members, as such, shall continue to be governed by this Agreement until
termination of the Company, as provided in this Agreement.  Upon
dissolution of the Company, the Managing Member, or a liquidator (who may be a
Member) appointed by the Managing Member shall liquidate the assets of the
Company, apply and distribute the proceeds thereof as contemplated by this
agreement and cause the cancellation of the Company's Certificate of
Formation.

      


      12.3           Distributions Upon
Liquidation.  (a)  Upon dissolution of the Company,
the Managing Member or a liquidator appointed pursuant to Section 12.2, shall
liquidate the assets of the Company as promptly as is consistent with obtaining
the fair value thereof, and apply and distribute the proceeds
thereof:

      


      (i)           First,
to creditors in the order of priority provided by law;

      


      (ii)           Second,
to the establishment of any reserves for contingencies which the Managing Member
(or liquidator) may consider necessary; and

       

      
        
           

        

        
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      (iii)           The
balance, if any, to the Members in the manner provided in Article V hereof,
provided that
no Member shall be distributed any amount in excess of such Member’s positive
Capital Account balance, (after giving effect to all contributions,
distributions, and allocations for all periods),and any excess shall instead be
distributed to the Members with positive Capital Account balances, in proportion
to such positive Capital Account balances.

      


      (b)           Notwithstanding
the foregoing, in the event the Managing Member (or liquidator) shall determine
that an immediate sale of part or all of the Company assets would cause undue
loss to the Members, the Managing Member (or liquidator), in order to avoid such
loss, may, after giving notice to all the Members, to the extent not then
prohibited by the laws, including the Act, of any jurisdiction in which the
Company is then formed or qualified and applicable in the circumstances, defer
liquidation of and withhold from distribution for a reasonable time any assets
of the Company except those necessary to satisfy the Company's debts and
obligations.

      


      (c)           After
the proceeds of the liquidation of the assets of the Company have been
distributed (which shall occur as soon as practical), the Managing Member (or
liquidator) shall cause the Certificate of Formation of the Company to be
canceled.

      


      12.4           Final
Accounting.  Upon the dissolution of the Company a proper
accounting shall be made by the Company's independent public accountants from
the date of the last previous accounting to the date of
dissolution.

      


      


      ARTICLE
XIII

      LIABILITY,
EXCULPATION

      AND
INDEMNIFICATION

      


      13.1           Liability.  (a)
Neither the Managing Member, nor its members, officers, directors, employees,
managers, principals, legal and beneficial owners or affiliates shall be liable,
responsible or accountable in damages or otherwise to the Company or any of the
Members, their respective successors, assignees or transferees or to third
parties for any act performed or omitted to be performed by them on behalf of
the Company and in a manner reasonably believed by them to be within the scope
of the authority granted to them by this Agreement except when such action or
failure to act constitutes gross negligence, fraud or willful
misconduct.  Moreover, neither the Managing Member, nor its members,
officers, directors, employees, managers, principals, legal and beneficial
owners or affiliates, shall have any liability to the Company for any losses
suffered by it due to the action or inaction of any agent retained by the
Company, whether through negligence, dishonesty or otherwise, provided that the
agent was selected with reasonable care.  The Managing Member may
consult with counsel and accountants in respect of the Company’s affairs and be
fully protected and justified in any action or inaction which is taken or
omitted to be taken in good faith and in accordance with the information,
reports, statements, advice or opinion provided by such persons, provided that they
were selected with reasonable care and the matter consulted is reasonably
believed by the Managing Member to be within such persons’ professional or
expert competence.  Notwithstanding the foregoing, nothing in this
Agreement shall in any way constitute a waiver or limitation of any rights which
the Members may have under federal or state securities laws.

       

      
        
           

        

        
          42

          
            

          

        

        
           

        

      

       

      (b)           Except
as otherwise expressly required by law, a Member, in its capacity as Member,
shall have no liability in excess of (i) the amount of its Capital
Contributions, (ii) its share of any assets and undistributed Profit of the
Company, (iii) its obligation to make other payments expressly provided for in
this Agreement, and (iv) the amount of any distributions wrongfully distributed
to it.

      


      13.2           Indemnification.  The
Company shall indemnify and hold harmless the Managing Member and its members,
officers, directors, employees, managers, members, legal and beneficial owners
and affiliates, and other representatives, as the case may be, from and against
any and all claims, losses, damages or expenses suffered or sustained by them as
a result of or in connection with any act performed or omitted to be performed
by them under this Agreement or otherwise on behalf of the Company, whether
incurred in an action between the parties hereto or otherwise, including without
limitation (i) any judgment, settlement, reasonable attorney’s and accountant’s
fees and other costs or expenses incurred in connection with the defense of any
actual or threatened action or proceeding and (ii) that certain Limited Guaranty
entered into by Lexington Realty Trust in connection with the currently existing
Credit Facility by and among the Company, 111 Debt Acquisitions LLC and Column
Financial, Inc.; provided, however, that no such
person shall be so indemnified to the extent that such claims, losses, damages
or expenses shall have been finally determined in a judicial proceeding to be
the result of any such person’s gross negligence, fraud or willful
misconduct.  The Managing Member may, in its sole discretion, advance
to any person or entity entitled to indemnification hereunder reasonable
attorneys’ fees and other costs and expenses incurred in connection with the
defense of any action or proceeding for which indemnity may be sought hereunder,
provided that
all such advances will be promptly repaid if it is subsequently determined that
the person or entity receiving such advance was not entitled to indemnification
hereunder.  Any indemnity under this Section 13.2 shall be paid from,
and only to the extent of, Company’s assets, and no Member shall have any
personal liability on account thereof.  All rights to indemnification
permitted in this Agreement and payment of associated expenses shall not be
affected by the termination and dissolution of the Fund or the removal,
withdrawal, insolvency, bankruptcy, termination, or dissolution of the Managing
Member.

      


      ARTICLE
XIV

      SPECIAL
COVENANTS

      


      14.1           Total
Debt.  The Managing Member shall cause the Company to maintain
an amount of Total Debt that does not exceed the Total Debt Limit at the end of
three consecutive months; provided, that if the
Total Debt Limit is exceeded at the end of three consecutive months, then
beginning on the first day of the next succeeding month:  (i) the
Initial Preferred Member shall be entitled to a Distribution Rate Step-Up until
such time as the Total Debt does not exceed the Total Debt Limit and (ii) a
Default Event shall be deemed to have occurred with respect to the Managing
Member.

       

      
        
           

        

        
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      14.2           Short Term
Debt.  If, after the Managing Member contributes the Managing
Member Preferred Capital up to the maximum of $75,000,000 pursuant to Section
3.7, the Short Term Debt still exceeds the Short Term Debt Limit at the end of
three consecutive months, then each of the following shall occur, in each case
beginning on the first day of the next succeeding month and, with respect to
clauses (i) through (iv), lasting until the Short Term Debt ceases to exceed the
Short Term Debt Limit (inclusive of the Managing Member Preferred Capital):
(i) unless otherwise consented to in writing by the Initial Preferred
Member in its sole discretion, the Company shall not incur any additional Short
Term Debt and shall apply all proceeds from its Permitted Investments to the
repayment of Short Term Debt, (ii) the Initial Preferred Member shall have
no obligation to make any additional Capital Contributions, (iii) the
Initial Preferred Member shall have the right to cause the Company to sell such
Loan Assets as the Initial Preferred Member determines in its reasonable
discretion so that the Short Term Debt ceases to exceed the Short Term Debt
Limit (iv) the Initial Preferred Member shall be entitled to a Distribution
Rate Step-Up and (v) a Default Event shall be deemed to have occurred with
respect to the Managing Member.

      


      14.3           Capital Commitment
Financing.  The Managing Member shall have the right to cause
the Company to obtain financing secured by the unpaid capital commitments of the
Members (which amount will not exceed 75% of the aggregate Maximum Capital
Contributions of all Members) on such terms as may be determined by the Managing
Member; provided, however, that (i) the
maximum borrowing that may be obtained shall not exceed 50% of such unpaid
capital commitments and (ii) the Members whose Capital Contributions secure the
financing shall receive one-half of the benefit derived from interest savings on
the amount borrowed against their respective unpaid capital
commitments.  Any such financing pursuant to this Section 14.3 shall
not be considered Short Term Debt.

      


      14.4           Sidecar
Investments.  (a)  If the Initial Preferred Member
elects to make an Additional Capital Contribution pursuant to Section 3.5(i)(4)
hereof, then (i) if the Additional Capital Contribution is made to the Company
as contemplated by clause (A) thereof, all distributions from the Sidecar
Investment Entity to the Company shall be distributed in accordance with Article
V hereof or (ii) if the Additional Capital Contribution is made to the Sidecar
Investment Entity as contemplated by clause (B) thereof, the Initial Preferred
Member shall be entitled to such distributions as are set forth in the
organizational documents for such Sidecar Investment Entity and the Initial
Preferred Member shall be entitled to be indemnified from the liabilities of the
general partner or managing member of such entity.

      


      (b)           If
the Initial Preferred Member elects not to make an Additional Capital
Contribution pursuant to Section 3.5(i)(4) hereof, then Lex-Win and/or any of
its Affiliates shall have the right to make an investment in such Sidecar
Investment Entity on its own behalf without any restrictions set forth under
this Agreement, and in such event neither the Initial Preferred Member nor the
Company shall have any rights with respect to such Sidecar Investment Entity;
provided, however, that in no
event (either during or after expiration of the Commitment Period) shall any
such Sidecar Investment materially adversely affect the Initial Preferred
Member’s then-existing rights or economic position as a Member of the
Company.

       

      
        
           

        

        
          44

          
            

          

        

        
           

        

      

      


      ARTICLE
XV

      MISCELLANEOUS

      


      15.1           Notices.  Any
notices, elections or demands permitted or required to be made under this
Agreement shall be in writing, signed by the Member giving such notice, election
or demand and shall be deemed to have been given (i) when personally delivered
with signed delivery receipt obtained, (ii) when transmitted by facsimile
machine with printed confirmation of successful transmission to the appropriate
facsimile number being obtained by the sender from the sender's facsimile
machine, (iii) when transmitted by electronic mail, provided such
electronic mail is followed by delivery by one of the other methods set forth in
this Section 15.1, or (iv) three business days after such notice has been
deposited in the United States first class mail if sent postage prepaid by
registered or certified mail, return receipt requested, in each case addressed
to such Member at the address set forth on Schedule 1 hereto;
provided
further, that copies of all notices, elections or demands made to Lex-Win
shall be sent to Lexington Realty Trust, One Penn Plaza, Suite 4015, New York,
New York 10119-4015, Attention: Joseph S. Bonventre.  A Member may
change the address to which notices shall be sent by written notice to all
Members (said change of addresses to be effective upon receipt by all
Members).

      


      15.2           Successors and
Assigns.  Subject to the restrictions on transfer set forth in
this Agreement, this Agreement, and each provision of this Agreement, shall be
binding upon and shall inure to the benefit of the Members, their respective
successors, successors-in-title, heirs and permitted assigns, and each
successor-in-interest to any Member, whether such successor acquires such
interest by way of gift, purchase, foreclosure or by any other method, shall
hold such interest subject to all of the terms and provisions of this
Agreement.

      


      15.3           Amendments.  Except
as otherwise provided in this Agreement, this Agreement may only be amended by a
written document approved by and duly executed by all of the Members; provided, however, that the
Managing Member shall be permitted to make such amendments as may be necessary
to correct scrivener’s errors without the consent of any other
Member.

      


      15.4           Partition.  No
Member or any successor-in-interest to any Member shall have the right while
this Agreement remains in effect to have any Company assets partitioned, and
each Member, on behalf of itself, its successors, representatives, heirs and
assigns, hereby waives any such right.  It is the intention of the
Members that during the term of this Agreement the rights of the Members and
their successors-in-interest, as among themselves, shall be governed by the
terms of this Agreement, and that the rights of any Member or
successor-in-interest to assign, transfer, sell or otherwise dispose of any
interest in the Company shall be subject to the limitations and restrictions of
this Agreement.

      


      15.5           No
Waiver.  The failure of any Member to insist upon strict
performance of a covenant under this Agreement or of any obligation under this
Agreement, irrespective of the length of time for which such failure continues,
shall not be a waiver of that Member's right to demand strict compliance in the
future.  No consent or waiver, express or implied, to or of any breach
or default in the performance of any obligation under this Agreement shall
constitute a consent or waiver to or of any other breach or default in the
performance of the same or any other obligation under this
Agreement.  No waiver or consent shall be effective unless in
writing.

       

      
        
           

        

        
          45

          
            

          

        

        
           

        

      

       

      15.6           Creditors.  None
of the provisions of this Agreement shall be for the benefit of or enforceable
by any creditors of the Company.

      


      15.7           Entire
Agreement.  This Agreement constitutes the full and complete
agreement of the parties to this Agreement with respect to the subject matter of
this Agreement.

      


      15.8           Captions.  The
titles or captions of Articles or Sections contained in this Agreement are
inserted only as a matter of convenience and for reference, are not a part of
this Agreement, and in no way define, limit, extend or describe the scope of
this Agreement or the intent of any provision of this Agreement.

      


      15.9           Counterparts.  This
Agreement may be executed in any number of counterparts and by the different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original, but all such counterparts together
shall constitute but one and the same instrument; signature and acknowledgment
pages may be detached from multiple separate counterparts and attached to a
single counterpart so that all signature and acknowledgement pages are
physically attached to the same document.  This Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto and delivery to each of the Members of a fully executed original
counterpart of this Agreement.

      


      15.10         Separability.  In
case any of the provisions contained in this Agreement or any application of any
of those provisions shall be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
in this Agreement and other applications of those provisions shall not in any
way be affected or impaired thereby.

      


      15.11         No Third Party
Beneficiaries.  Nothing in this Agreement, expressed or
implied, is intended to confer any rights or remedies upon any Person, other
than the Members and, subject to the restrictions on assignment contained
herein, their respective successors and assigns.

      


      15.12          Expenses. Each party
hereto shall pay all of its own legal and accounting fees and expenses incurred
in connection with the preparation and negotiation of this Agreement and any
agreements ancillary hereto. 

       

      15.13          Governing
Law.  This Agreement and the obligations of the Members
hereunder shall be interpreted, construed and enforced in accordance with the
laws of the State of Delaware without regard to its choice of law
provisions.  Except as otherwise provided herein, the rights and
obligations of the Members and the administration and termination of the Company
shall be governed by the Act.

       

      
        
           

        

        
          46

          
            

          

        

        
           

        

      

       

      15.14          Jurisdiction;
Venue. Each party hereto hereby irrevocably and
unconditionally (a) agrees that any action, suit or other legal proceeding
brought in connection with or relating to this Agreement or any matter
contemplated hereby shall be brought exclusively in a court of competent
jurisdiction located in New Castle County, Delaware, whether a state or federal
court, and shall not be brought in any court or forum outside New Castle County,
Delaware; (b) consents and submits to, and agrees that it will not assert (by
way of motion, as a defense or otherwise) that it is not subject to, personal
jurisdiction in connection with any such action, suit or proceeding in any such
court; and (c) waives to the fullest extent permitted by law, and agrees that it
will not assert (by way of motion, as a defense or otherwise), any claim that
the laying of venue of any such action, suit or proceeding in any such court is
improper or that any such action, suit or proceeding brought in any such court
was brought in an inconvenient forum or should be stayed by reason of the
pendency of some other action, suit or other legal proceeding in a court or
forum other than any such court. 

      
         

        15.15          Jury Waiver. EACH
PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY LAW, AND AGREES THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER
LEGAL PROCEEDING IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR ANY MATTER
CONTEMPLATED HEREBY.

      

      


      [The following page is the signature
page]

      


      
        
           

        

        
          47

          
            

          

        

        
           

        

      

      


      IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first written.

       

      
        	 	MANAGING
      MEMBER	 
	 	 	 	 
	 	      
                LEX-WIN
      CONCORD HOLDINGS LLC

              	 
	 	 	 	 
	 	
                By:
      

              	
                WRP
      SUB-MANAGEMENT LLC, its Administrative
      Manager

              	 
	 	 	 	 
	 	 	 	 
	 	 	By:	/s/ Peter Braverman	 
	 	 	 	Peter Braverman	 
	 	 	 	President	 
	 	 	 	 
	 	 	 	 


      

    

     

    
       

      
        	 	INLAND	 
	 	 	 	 
	 	INLAND
      AMERICAN (CONCORD) SUB, LLC	 
	 	 	 	 
	 	
                By:
      

              	
                      
                  INLAND
      AMERICAN REAL ESTATE TRUST, INC., its managing
      member

                

              	 
	 	 	 	 
	 	 	 	 
	 	 	By:	/s/ Lori Faust	 
	 	 	 	Lori Faust	 
	 	 	 	Treasurer	 
	 	 	 	 
	 	 	 	 


      

       

      
        [Signature page to the Second Amended
and Restated Limited Liability Company Agreement of Concord Debt Holdings
LLC]

      

       

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      Schedule
1

    

    
      


      


      
        	
                Member

              	
                Class

              	
                Initial
      Capital Commitment

              	
                Maximum
      Capital Contribution

              
	
                Inland
      American (Concord) Sub, LLC

                2901
      Butterfield Road

                Oak
      Brook, IL  60523

                Taxpayer
      ID#: 26-2947565

                 

              	
                Preferred

              	
                $20,000,000.00

              	
                $100,000,000.00

              
	
                Lex-Win
      Concord LLC

                7
      Bulfinch Place

                Suite
      500

                Boston,
      MA 02114

                Taxpayer
      ID#:  26-2953404

                 

              	
                Common

              	
                $325,000,000.00

              	
                Unlimited

              
	 
      	
                Preferred

              	
                $0

              	
                $75,000,000.00

              


      

       

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      Schedule
7.4

      


      


      Mezzanine
Loan and Security Agreement dated as of April 12, 2007 between MS Resorts III,
LLC as Mezzanine Borrower and Morgan Stanley Mortgage Capital Inc., as Mezzanine
Lender.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

      


      Exhibit
A

      


      INVESTMENT
CRITERIA

      


      
      

       

      
        	      
                Loan
      Assets:

              	      
                First
      mortgage loans, B-notes, mezzanine loans and preferred equity so long as
      the loan to current market value does not exceed
    85%.

              
	 	 
	
                Equity
      Securities:

              	      
                Up
      to 1% of the outstanding common stock of any publicly traded mortgage
      REIT, provided that
      the aggregate ownership of such securities does not exceed 3% of total
      assets of the Company, but only in the case where the Company intends to
      pursue control of the target company.  No equity instrument
      shall be acquired that represents more than 80% of the then current equity
      value of the underlying property.

              
	 	 
	      
                Asset
      Classes:

              	      
                Multifamily
      apartments, office, retail, warehouse and hospitality assets provided
      hospitality does not exceed 27.5% of total assets of the
      Company.

              
	 	 
	      
                Prohibited
      Asset Classes:

              	      
                Specialty
      use assets (R&D, healthcare, industrial, call centers, data centers,
      golf courses, auto dealerships, etc.), all development, residential
      projects, raw or infrastructered land, condominium projects and assets
      located outside of the United States.

              
	 	 
	      
                Financial
      Restrictions:

              	      
                95%
      of newly acquired assets will have an underwritten DSCR (including any
      amortization) at the time of closing of:

              
	 	 
	 	(i) 	1.1:1 or
      greater
	 	 	 	- excluding
      reserves
	 	 	 	- or where occupancy
      exceeds 90% at acquisition
	 	(ii)	if at 1.1:1 there
      must be a
	 	 	 	- fully funded
      interest reserve
	 	 	 	- together with a
      fully funded TI and LC reserve
	 	(iii)	if less than
      1.1:1
	 	 	 	- no deals may be
      done with 70% or less occupancy
	 	 	 	- DSCR for the
      ensuing 24 month period reaches a stabilized level of 1.1:1 or
      greater
	 	 	 	- approval from the
      Advisory Committee (including at least one member appointed by the Initial
      Preferred Member ) will be required
	 	 
	 	No instrument will
      be acquired where the Company owns less than 51% of the entire class of
      debt, except where: (i) the “last dollar loss” is less than 65% of the
      underlying property value at closing and the debt instrument exceeds $50
      million, (ii) for debt securities (all of which require prior to
      acquisition the approval of the Advisory Committee, including at least one
      member appointed by the Initial Preferred Member), the projected leveraged
      yield of the instrument at closing is 12.5% or greater, (iii) for equity
      securities the current dividend yield is 7.5% or
  greater.